ITEMID: 001-82292
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: ASSOCIAZIONE NAZIONALE REDUCI AND 275 OTHERS v. GERMANY
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Peer Lorenzen
TEXT: The applicants are an association, the Associazione Nazionale Reduci Dalla Prigionia dall’Internamento e dalla Guerra di Liberazione (A.N.R.P.), registered in Italy, and 275 natural persons who are all Italian nationals (see list appended). Most of those individuals are members of the applicant association. Some of the applicants lodged the application in their capacity as legal successors. The applicants were represented before the Court by Mr J. Lau, a lawyer practising in Florence.
s, may be summarised as follows.
Most of the applicants were members of the Italian armed forces during the Second World War. Italy had first been an ally of the German Reich, but after Mussolini’s fall the new Italian Government concluded a truce with the allied forces on 3 September 1943. As of 9 September 1943 the German armed forces disarmed and captured Italian soldiers. The German army offered those captured Italian soldiers the choice of either joining the German armed forces or becoming prisoners of war. The latter were detained in labour camps and used as labourers in the German industry.
As of 20 September 1943 those detainees were called “Italian Military internees” (“Italienische Militärinternierte”).
On 13 October 1943 Italy declared war against Germany.
Beginning in the summer of 1944 the internees were transferred from war captivity (Kriegsgefangenschaft) to so-called “civilian employment” (Ziviles Arbeitsverhältnis). At first, the internees were asked to sign an according declaration consenting to the change of their status. Despite pressure exercised by the German authorities, only few internees agreed to the transfer of their status. The Government of the German Reich then abstained from obtaining those declarations and transferred the internees to civilian status without any formal declaration. They were subsequently registered as civilian forced labourers. The working conditions and the detention in labour camps, however, did not change. The internees had to carry out physically hard work without receiving adequate nutrition and many of them died as a consequence.
Five of the applicants, among them Mr Ferrini and Mr Accidini, were not members of the Italian armed forces. They were civilians who were deported to Germany and subjected to forced labour as an act of retaliation against the Italian civilian population.
The Federal Republic of Germany, after its foundation on 23 May 1949, did not establish any compensation schemes specifically for forced labourers.
Under the London Agreement on Germany’s External Debts (London Debt Agreement) of 27 February 1953, the regulation of compensation claims was deferred until the final settlement of reparation.
The Federal Republic of Germany paid compensation to victims of the Nazi regime, mostly to those who were living in Israel, Germany and other Western European States, in particular pursuant to the provisions of the Federal Act on Compensation for Victims of Nazi Persecution (Bundes-entschädigungsgesetz), which entered into force on 1 October 1953. It provided inter alia compensation for detention in a concentration camp and damage caused to the detainees’ health. However, forced labour as such was not covered by the existing legislation.
In 1961 the Federal Republic of Germany and Italy concluded an agreement pursuant to which the Federal Republic of Germany paid a lump sum to the Italian State, which then awarded compensation to victims of persecution by the Nazi regime. The Italian State did not award any benefits to the former “Italian Military Internees”. They receive a supplement of 0.52 euros per day to their regular old-age pension from the Italian State, as do all former members of the Italian armed forces who were detained as prisoners of war.
After 1990 the Federal Republic of Germany furthermore paid lump sums to several Eastern European States, which then created funds for victims of the Nazi regime.
However, individual compensation for forced labour as such was still not provided by the Federal Republic of Germany. Hence many of those former forced labourers brought actions against German companies, in particular class action suits in the United States of America. Against that background the Government of the Federal Republic of Germany and the Government of the United States of America concluded a treaty that envisaged the creation of the foundation “Remembrance, Responsibility and Future” (Stiftung “Erinnerung, Verantwortung und Zukunft” “the Foundation”) which would provide individual compensation for former forced labourers.
Russia, Poland, the Czech Republic, Ukraine, Byelorussia, the Conference on Jewish Material Claims against Germany (“the Jewish Claims Conference”), legal representatives of former forced labourers and representatives of the German industry had participated in those negotiations. Italy had not been a party.
On 12 August 2000 the “Law on the Creation of the Foundation “Remembrance, Responsibility and Future” (Gesetz zur Errichtung einer Stiftung “Erinnerung, Verantwortung und Zukunft” “the Foundation Law”) entered into force (see “Relevant domestic and international law” below).
On 11 August 2001 the applicant association, a former Italian Military Internee (M) and the 271st applicant (Mr Ferrini), who had been subjected to forced labour as a civilian, lodged a constitutional complaint against sections 10 § 1, 11 § 3 and 16 §§ 1 and 2 of the Foundation Law with the Federal Constitutional Court.
On 17 January 2002 applicants nos. 2 – 270 joined the constitutional complaint.
The applicant Mr Ferrini and M submitted that they had had claims for compensation for forced labour under German civil law in conjunction with international public law against the Federal Republic of Germany prior to the entry into force of the Foundation Law. Invoking a violation of their right of property (Article 14 of the German Basic Law – see “Relevant domestic and international law” below) they complained that they lost those claims by virtue of section 16 of the Foundation Law. All complainants contended that the exclusion of judicial review of the decisions by the International Organisation for Migration (IOM) violated their right to an effective remedy under Article 19 § 4 of the German Basic Law. Moreover, they held the opinion that the exclusion of former prisoners of war from the ambit of compensation under the Foundation Law was discriminatory and thus contrary to Article 3 of the German Basic Law (prohibition of discrimination). Lastly, the complainants submitted that they had lost the right under Article 104 of the German Basic Law to have the unlawfulness of their arrest, detention and forced labour confirmed by a judge.
On 28 June 2004 the Federal Constitutional Court refused to admit the complaint. In respect of the applicant association the court held that the complaint was inadmissible since the association did not invoke a violation of its own constitutional rights, but solely a violation of the rights of its members. Regarding applicants nos. 2 – 270, the court found that the complaint had been lodged outside the statutory time-limit of one year since the entry into force of the Foundation Law on 12 August 2000. As far as the applicant Mr Ferrini and M were concerned the court held that their complaint was partly admissible, but unfounded.
In respect of Article 104 of the German Basic Law the court held that the Basic Law did not apply to the arrest, the detention and the forced labour, since those events had taken place before the Basic Law entered into force on 23 May 1949. Furthermore, referring to the Hague Convention on the Laws and Customs of War on Land (“the Hague Convention” – see “Relevant domestic and international law” below) the court found that international public law did not establish individual claims for compensation for forced labour. The court pointed out in particular that Article 3 of the Hague Convention did not establish an individual claim of compensation against a Contracting State, but created only claims of one Contracting State vis-à-vis another Contracting Party. The court went on to say that it was not excluded that national law might establish claims of individuals that existed next to the claims of the Contracting State. This, however, did not mean that there was a general rule according to which individuals had a right of compensation against the State which had violated the Hague Convention. Hence the question as to whether individuals were entitled to compensation was entirely dependant on domestic law.
Moreover, the court found that the exclusion of former prisoners of war from the scope of those eligible for benefits under the Foundation Law by section 11 § 3 was not discriminatory since prisoners of war could be compelled to perform labour under the Hague Convention. In this respect the court elaborated that the legislator was allowed to distinguish, when awarding compensation, between victims of general hardships caused by the war and victims of particular ideological persecution by the Nazi regime, especially as the funds of the Foundation were limited.
In respect of the exclusion of judicial review by the Foundation Law the court found that Article 19 § 4 of the Basic Law required that actually a right existed whose alleged violation could be examined by the courts. The court concluded that the legislator was free to decide not to establish claims of an individual vis-à-vis a public law foundation and to exclude judicial review in this connection.
In its decision the Federal Constitutional Court pointed out that, according to his own submissions, Mr Ferrini had not lodged a request for compensation with the IOM since he had not been detained in “another place of confinement” within the meaning of section 11 § 1 no. 1 of the Foundation Law and was furthermore not in a position to demonstrate that he met the requirements as set up by the guidelines of the Foundation (see “Relevant domestic and international law” below).
The applicants nos. 2 – 276 submitted that they had all lodged unsuccessful request for compensation for forced labour with the IOM. However, only the 274th and 276th applicants, Mr Accidini and Mr della Piazza, presented decisions of the IOM to the Court.
On 22 April 2003 the IOM rejected the request lodged by the applicant Mr Accidini holding that he did not meet the requirements for compensation under section 11 § 1 of the Foundation Law in respect of forced labourers from Western European States; i.e. forced labour in a concentration camp, a ghetto or “another place of confinement”.
On 6 April 2004 the IOM’s appeals board rejected Mr della Piazza’s appeal as unfounded, confirming that, as a former prisoner of war, he was excluded from benefits.
On 6 August 2002 the 272nd and 273rd applicants, Mr Basile and Mr Malberto, who had been subjected to forced labour as Italian Military Internees, lodged requests for compensation with the IOM. By letter dated 11 June 2002 the IOM informed the applicants that they did not fall within the scope of the Foundation Law, as determined by the Foundation and the German Government. By letter of 11 November 2002 the IOM notified the applicants that its appeals board was bound by the decision of the Foundation and the German Government. Apparently, no formal decision was rendered by the IOM.
On 6 August 2002 the applicants Mr Basile and Mr Malberto brought an action for declaration (Feststellungsklage) against the Federal Republic of Germany and the Foundation in the Berlin Administrative Court as a pilot case. They requested the court inter alia to hold that they, as former Italian Military Internees, were entitled to benefits under the Foundation Law.
The court rejected the applicant’s action. The court found that the action was inadmissible since there was no legal relationship (Rechtsverhältnis) between the applicants on the one hand and the Federal Republic of Germany and the Foundation on the other hand, which is an admissibility criterion for an action for declaration. The Foundation Law did not establish individual claims vis-à-vis the Foundation or the Federal Republic of Germany, but solely vis-à-vis the partner organisation. The court added that the fact that the Federal Ministry of Finances exercised the legal supervision of the Foundation did not create a legal relationship between the applicants and the Federal Republic of Germany. From the court’s point of view the legal supervision was solely carried out in the public interest and not in the interest of the beneficiaries under the Foundation Law. The court held the opinion that the applicants were thus only indirectly affected by the legal supervision of the Federal Ministry of Finances.
The court refused the applicants leave to appeal.
The Berlin Administrative Court of Appeal rejected the applicants’ request for leave to appeal against the judgment of the Berlin Administrative Court confirming the lower court’s reasoning.
On 3 November 2003 the 276th applicant, Mr della Piazza, brought an action (Verpflichtungsklage) against the Federal Republic of Germany and the Foundation in the Berlin Administrative Court. He requested the court to order the Federal Ministry of Finances to instruct the Foundation to recognise that he was entitled to benefits under section 11 of the Foundation Law. Furthermore, he requested the court to order the Foundation to recognise that he, as a former Italian Military Internee, was entitled to benefits under section 11 of the Foundation Law.
On 17 March 2005 the court rejected the applicant’s action. In respect of the first motion the court held that the applicant could not derive any rights vis-à-vis the Federal Ministry of Finances from the fact that the latter exercised the legal supervision of the Foundation.
As regards the applicant’s second motion the court found, as outlined above, that the Foundation Law did not establish a legal relationship between the applicants and the Foundation.
The Foundation Law stipulates that the Foundation should be endowed with 10 billion Deutschmarks (DEM - 5.11 billion euros (EUR)), to be provided equally by the German Government and by German industry.
The sum of 8.1 billion DEM is intended for the compensation of forced labour. The largest share of those funds (approximately 5.5 billion DEM) is reserved for applicants residing in Poland, Ukraine, Moldova, the Russian Federation, Latvia, Lithuania, Byelorussia, Estonia and the Czech Republic. The remaining share is destined for beneficiaries residing outside the aforementioned States, namely 800 million DEM for non-Jewish beneficiaries and about 1.8 billion DEM for Jewish beneficiaries.
The remaining funds of approximately 1.9 billion DEM inter alia aim at compensating the loss of property or were granted as humanitarian aid to the Jewish Claims Conference and the International Commission on Holocaust Era Insurance Claims, which finance social programmes for Holocaust survivors.
The Federal Ministry of Finances exercises the legal supervision (Rechtsaufsicht) of the Foundation.
Requests for compensation are not processed by the Foundation itself, but by its regional partner organisations in several European countries. The competent partner organisation for Italy is the IOM in Geneva.
Each partner organisation has an appeals board which reviews the organisation’s decisions upon an applicant’s appeal. Judicial review of the appeals boards’ decisions is not provided for by the Foundation Law.
The highest amount of compensation - for forced labour in a concentration camp - is 15,000 DEM (7,669 EUR).
Pursuant to section 11 § 3 of the Foundation Law forced labour carried out during war captivity, as a matter of principle, does not entitle to compensation. The provisions read as follows:
“Section 11: Eligible persons
(1) Eligible under this law are:
1. persons who were detained in a concentration camp as defined in section 42 § 2 of the German Indemnification Act or in another place of confinement outside the territory of what is now the Republic of Austria or a ghetto under comparable conditions and were subjected to forced labour;
2. persons who were deported from their homeland to the territory of the German Reich within the borders of 1937 or to a German occupied area, subjected to forced labour in a commercial enterprise or for public authorities there, and detained under conditions other than those mentioned in Number 1, or were subjected to conditions resembling detention or similar extremely harsh living conditions; this rule does not apply to persons who because their forced labour was performed primarily in the territory of what is now the Republic of Austria may receive payments from the Austrian Reconciliation Foundation; ...
(3) Prisoner-of-War status does not entitle to benefits....”
In respect of the exclusion of former prisoners of war the travaux préparatoires state that according to international public law prisoners of war may be forced to perform work by the detaining state.
In 2001 the Federal Ministry of Finances obtained an expert opinion on the legal status of the Italian Military Internees which concluded that those had never lost their prisoner-of-war status, because the German Reich had not been in a position to revoke their status unilaterally. The Federal Ministry of Finances shared that view and instructed the Foundation that former Italian Military Internees were excluded from benefits under the Foundation Law.
In August 2001 the board of trustees of the Foundation issued guidelines according to which Italian Military Internees were excluded from benefits unless they had been detained in a concentration camp. Those guidelines had been prepared in concert with the Federal Ministry of Finances. In a letter dated 12 February 2002 addressed to the IOM the Foundation pointed out that the Foundation and its partner organisations were bound by the Government’s position.
As regards civilian forced labourers from Western European States, they, according to the aforementioned guidelines, are only entitled to benefits if they were subjected to forced labour in a concentration camp, a ghetto or “another place of confinement” as set out in the first sentence of section 11 § 1 of the Foundation Law. Otherwise, from the Foundation’s point of view the former forced labourers would not meet the criterion of “similar extremely harsh living conditions” referred to in the second sentence of section 11 § 1 of the Foundation Law. According to the Foundation there was a presumption that they were not housed under “conditions resembling detention”, which could, however, be rebutted by the former forced labourers.
All possible further claims against the German State or German companies going beyond the benefits provided by the Foundation Law are excluded by section 16, which reads as follows:
“Section 16: Exclusions from Claims
(1) Payments from public funds, including social security, and from German business enterprises for injustice suffered under National Socialism as defined in Section 11 may be claimed only under the terms of this Law. Any further claims in connection with National Socialist injustices are excluded. This applies also to cases in which claims have been transferred to third persons by operation of law, transition, or a legal transaction.
(2) Each claimant shall provide a statement within the framework of the application procedure irrevocably renouncing, without prejudice to Sentences 3 through 5, after receipt of a payment under this Law any further claim against the authorities for forced labour and property damage, all claims against German enterprises in connection with National Socialist injustice, and forced-labour claims against the Republic of Austria or Austrian enterprises. The renunciation becomes effective upon receipt of a payment under this Law. ...”
Article 3
A belligerent party which violates the provisions of the said Regulations shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces.
Article 4
Prisoners of war are in the power of the hostile Government, but not of the individuals or corps who capture them.
They must be humanely treated.
All their personal belongings, except arms, horses and military papers, remain their property.
Article 6
The State may utilize the labour of the prisoners of war according to their rank and aptitude, officers excepted. The tasks, however, shall not be excessive and shall have no connection with the operations of the war.
Article 23
In addition to the prohibitions provided by special Conventions, it is especially forbidden -
...
To declare abolished, suspended, or inadmissible in a court of law the rights and actions of the nationals of the hostile party. A belligerent is likewise forbidden to compel the nationals of the hostile party to take part in the operations of war directed against their own country, even if they were in the belligerent’s service before the commencement of the war. “
Article 5
“The High Contracting Parties recognise that recourse to compulsory or forced labour may have grave consequences and undertake each in respect of the territories place under its sovereignty, jurisdiction, protection, suzerainty or tutelage, to take all necessary measures to prevent compulsory or forced labour from developing into conditions analogous to slavery.
It is agreed:
(1) Subject to the transitional provisions laid down in paragraph (2) below, compulsory or forced labour may only be exacted for public purposes.
(2) In territories in which compulsory or forced labour for other than public purposes still survives, the High Contracting Parties shall endeavour progressively and as soon as possible to put an end to the practice. So long as such forced or compulsory labour exists, this labour shall invariable be of an exceptional character, shall always receive adequate remuneration, and shall not involve the removal of the labourers from their usual place of residence.”
“Article 2
Prisoners of war are in the power of the hostile Power, but not of the individuals or corps who have captured them.
They must at all times be humanely treated and protected, particularly against acts of violence, insults and public curiosity.
Measures of reprisal against them are prohibited.
Article 10
Prisoners of war shall be lodged in buildings or in barracks affording all possible guarantees of hygiene and healthfulness.
The quarters must be fully protected from dampness, sufficiently heated and lighted. All precautions must be taken against danger of fire.
With regard to dormitories the total surface, minimum cubic amount of air, arrangement and material of bedding-the conditions shall be the same as for the troops at base camps of the detaining Power.
Article 11
...
Belligerents may utilize the labour of able prisoners of war, according to their rank and aptitude, officers and persons of equivalent status excepted.
However, if officers or persons of equivalent status request suitable work, it shall be secured for them so far as is possible.
Noncommissioned officers who are prisoners of war shall only be required to do supervisory work, unless they expressly request a remunerative occupation.
Belligerents shall be bound, during the whole period of captivity, to allow to prisoners of war who are victims of accidents in connection with their work the enjoyment of the benefit of the provisions applicable to labourers of the same class according to the legislation of the detaining Power. With regard to prisoners of war to whom these legal provisions might not be applied by reason of the legislation of that Power, the latter undertakes to recommend to its legislative body all proper measures equitably to indemnify the victims.
Article 29
No prisoner of war may be employed at labours for which he is physically unfit.
Article 32
It is forbidden to use prisoners of war at unhealthy or dangerous work.
Any aggravation of the conditions of labour by disciplinary measures is forbidden.
...
Prisoners utilized for other work shall be entitled to wages to be fixed by agreements between the belligerents. ...”
Article 3
“(1) All persons shall be equal before the law.
...
Article 14
(1) Property and the right of inheritance shall be guaranteed. Their content and limits shall be defined by the laws.
(2) Property entails obligations. Its use shall also serve the public good.
(3) Expropriation shall only be permissible in the public interest. It may only be ordered by or pursuant to a law that determines the nature and extent of compensation. Such compensation shall be determined by establishing an equitable balance between the public interest and the interests of those affected. In case of dispute respecting the amount of compensation, recourse may be had to the ordinary courts.
Article 19 § 4
Should any individual’s rights be infringed by public authority, he may have recourse to the courts. ...”
COMPLAINTS
The applicants complained under Articles 5 §§ 4 and 5, 6 § 1 and 14 of the Convention and Article 1 of Protocol No. 1 of the Convention about the decisions rendered by the IOM, the Federal Constitutional Court, the Berlin Administrative Court and the Berlin Administrative Court of Appeal.
In respect of Article 5 §§ 4 and 5 of the Convention the applicants complained that they were denied the right to have the illegality of their deportation and forced labour acknowledged.
Invoking Article 6 § 1 of the Convention the applicants submitted that they did not have access to a court for the judicial review of the decisions rendered by the IOM. In particular, the applicants complained that the IOM appeals body did not satisfy the requirements of an ”independent and impartial tribunal” within the meaning of Article 6 § 1 of the Convention.
Under Article 14 of the Convention the applicants argued that they were discriminated against both as foreigners and as former Italian Military Internees.
Moreover, they held the opinion that they had had claims for compensation under domestic civil law in conjunction with international public law against the Federal Republic of Germany which had become extinct as a result of section 16 of the Foundation Law. They therefore complained of a violation of Article 1 of Protocol No. 1. The applicants based their claims in particular on Article 23 of the Hague Convention, the Slavery Convention and the Convention Relating to Prisoners of War. Furthermore, the applicants argued that Italian Military Internees had been in fact civilian forced labourers and not prisoners of war as maintained by the Federal Republic of Germany. They contended that they had not been treated as prisoners of war by the German Reich and considered it contradictory that the Federal Republic of Germany held that alleged status against them to deny them compensation. Lastly, the applicants who had been subjected to forced labour as civilians complained about the refusal of their requests for compensation under the Foundation Law.


ITEMID: 001-91144
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF OLUJIC v. CROATIA
IMPORTANCE: 2
CONCLUSION: Remainder inadmissible;Violations of Art. 6-1;Non-pecuniary damage - award
JUDGES: Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 4. The applicant was born in 1952 and lives in Zagreb.
5. The applicant was a judge and the President of the Supreme Court (Vrhovni sud Republike Hrvatske). He was also a member of the National Judicial Council (Državno sudbeno vijeće, hereinafter the “NJC”). Sometime in 1996 the Government filed a request with the NJC to open disciplinary proceedings against the applicant. They alleged that from January to August 1996 the applicant had conducted sexual relationships with minors and that from 1995 onwards he had used his position to protect the financial activities of two individuals who were known for their criminal activities, and had thus caused damage to the reputation of the judiciary, which amounted to a serious disciplinary offence. For these reasons they proposed that disciplinary proceedings be instituted against the applicant and that a disciplinary sanction be imposed, including that he be permanently removed from office as a judge and as President of the Supreme Court. Furthermore, they asked for the applicant’s immediate provisional removal from office during the proceedings.
6. On 21 November 1996 the NJC instituted disciplinary proceedings against the applicant. On 5 December 1996 the applicant filed a motion seeking the withdrawal from the case of three members of the NJC, namely A.P., V.M. and M.H, on the ground that they had shown their bias towards the applicant in interviews published in various national newspapers. The motion was denied on 9 January 1997 as being unfounded. At the hearing held on 9 January 1997 the NJC refused the applicant’s request that the hearings before it be public on the ground that the exclusion of the public was necessary for the protection of the interests of the applicant and the judiciary as such without any further reasoning. Further hearings were held on 10, 13 and 14 January 1997. On 14 January 1997 the NJC found that the applicant had committed a disciplinary offence in maintaining contacts and appearing in public with B.Č. and S.Š. despite knowing that they had been convicted of numerous crimes, and of using his position to protect these two individuals’ interests and gains from June 1995 to November 1996. The NJC further found the remaining allegations against the applicant unfounded and thus requiring no disciplinary measures. It was decided to remove the applicant from his post as judge and President of the Supreme Court.
7. The applicant’s subsequent “request for protection” (zahtjev za zaštitu) to the Parliament’s Chamber of the Counties (Županijski dom Sabora Republike Hrvatske) was dismissed on 19 February 1997. On 21 March 1997 the applicant lodged a constitutional complaint in which he maintained that the proceedings had been unfair and that his right to respect for his correspondence had been infringed.
8. On 17 April 1998 the Constitutional Court quashed the decision of NJC of 14 January 1997 as well as the decision of the Chamber of Counties of 19 February 1997. The Constitutional Court found that the disciplinary proceedings before the NJC had been defective because some of the evidence presented in the proceedings, such as audio recordings of intercepted telephone calls and testimony by a member of the NJC who sat on the Council panel which considered the applicant’s case, had not been obtained in accordance with the law. The case was remitted to the NJC.
9. In the resumed proceedings the first hearing was held on 23 September 1998. The applicant filed a motion seeking the withdrawal from the case of four members of the NJC, namely A.P., V.M., M.H., and I.M., alleging that they had failed to show impartiality in statements to the press. The NJC declared inadmissible the request for I.M.’s withdrawal, since he had already withdrawn from the proceedings. The request for the withdrawal of A.P., V.M. and M.H. was dismissed without any further reasoning.
10. The applicant further requested that the proceedings be public. The request was denied. The relevant part of the transcript from the hearing reads as follows:
“The President of the Council informs those present that the public shall be excluded from the disciplinary proceedings because it has not been decided that the proceedings shall be public pursuant to section 28 paragraphs 1 and 3 of the National Judicial Council Act.
Defence counsel I.K. requests that the disciplinary proceedings be public, justifying the request by the gravity of the case, the general public interest, the importance of the proceedings and the need to protect the defendant’s rights.
Defence counsel M.S. supports the request and adds that the right to a public hearing is the basic principle of criminal procedure and that the NJC’s decision to exclude the public would be an attack on that right and would breach the fairness of the proceedings. If, however, the Council decides to exclude the public from the proceedings, he requests that the OSCE and UNHCR representatives who are waiting outside the courtroom be allowed to attend the hearings.
Counsel for the Government M.K. leaves the decision to the Council and adds that he is not opposed to the exclusion of the public from these proceedings.
...
The Council announces its
11. Counsel for the Government dropped all charges against the applicant save for those alleging that in the period from June 1995 to the beginning of November 1996 he had continually socialised in public places with two individuals, B.Č. and S.Š., who had a criminal background. Counsel asked the NJC to call five witnesses on behalf of the Government in order to prove their case, without further explanations. The NJC allowed that four of those witnesses be called and also ordered that three further witnesses be called ex officio. The applicant and his counsels at that time had not asked that any witnesses be called.
12. The second hearing in the resumed proceedings before the NJC took place on 1 October 1998. The NJC allowed a representative of the UNHCR and a representative of the OSCE to be present at the hearing. All present were warned, under threat of criminal sanctions, that they were obliged to keep secret all that they learned at the hearing.
13. The NJC heard evidence from seven witnesses, including S.Š. and B.Č., all of whom called on behalf of the Government. The evidence showed that the applicant had occasionally been seen in the company of S.Š. in Umag, where the applicant had a flat and was spending some of his holidays, and in the company of B.Č. in Osijek, the applicant’s hometown. Both S.Š. and B.Č. stated that they had not been the applicant’s friends, that they had no close contacts with the applicant and that they had occasionally been in the same company as the applicant, but always in public places and always in the company of other persons.
14. Counsel for the Government nominated another witness to give evidence about the applicant’s contacts with B.Č. in Osijek. The NJC accepted that proposal. As to the evidence relied on by the applicant, the transcript of the hearing reads:
“Dr Krunoslav Olujić submits a written list of witnesses to be called on his behalf.
... [the defence counsel states as follows]:
‘We call witnesses [from the list of evidence] to prove to the Council that in the material period Dr Olujić was indeed occasionally in the company of the persons with the alleged ‘criminal background’, but that each time, without exception, they were together with a large number of persons. Furthermore, S.Š. was present only in his capacity as the owner of a restaurant and it was natural that as such he was occasionally present in the same company as Dr Olujić. We call further witnesses who were often in the company of Dr Olujić in Osijek when B.Č. would occasionally join them. Our aim is to show the true nature of the allegation [that the applicant] “had socialised” and “had been in the company of ... in public places” ...’
...
The defence counsel also asks that further witnesses, mentioned in the enclosed decision of the Umag Minor-Offences Court, be called
...
The Council announces its
...
All proposals of the defendant Dr Olujić are dismissed as unimportant, since the circumstances to which the evidence in question refers have either already been established or are of no importance for the decision.”
15. The last hearing in the applicant’s case before the NJC was held on 7 October 1998. The NJC allowed a representative of the UNHCR and a representative of the OSCE and an interpreter to be present at the hearing. All present were again warned, under threat of criminal sanctions, that they were obliged to keep secret all that they learned at the hearing.
16. The NJC heard evidence from a further witness, called on behalf of the Government. It also heard the applicant, who stated that the proceedings against him had been politically motivated because of his opposition to the State’s senior officials with regard to the concept of the judiciary. He also stated that on 11 October 1996 he had been asked to resign from the office of President of the Supreme Court and offered a post as an Ambassador, which he had refused. As to the allegations against him, he stated that he had occasionally been in the company of the two individuals concerned but that these meetings had always been in public and in the presence of various other persons, and that the individuals in question had not been his friends. The relevant part of his statement reads:
“... as a high State official aware of my position and the responsibilities I bear, I cannot and will not accept a demand ... asking me to forsake two persons whom I knew before I was appointed to a position of responsibility in the Republic of Croatia. However, my acquaintanceship and relationship with them, irrespective of their past, never went beyond the boundaries of what was acceptable or would have made them questionable from the legal or moral standpoint.”
17. The defence asked that three further witnesses be heard concerning the facts of the case, which was denied.
18. In its decision of 7 October 1998 the NJC established that the applicant had committed a disciplinary offence in that he had maintained contacts and socialised in public places with two individuals who had a criminal background, a behaviour which had harmed the reputation of the judiciary and was contrary to his judicial duty. He was dismissed from the office of judge and from that of President of the Supreme Court. The relevant part of the decision reads:
“Dr Krunoslav Olujić ... bears disciplinary responsibility
in that he
from June 1995 to the beginning of November 1996, while holding the post of the President and a judge of the Supreme Court of the Republic of Croatia, maintained contacts and appeared in public in Osijek and Umag with B.Č. and S.Š. although he had known that they had been known as delinquents
...
As to the exclusion of the public, the Council held as follows:
“Under section 28 paragraph 3 of the National Judicial Council Act, disciplinary proceedings are in principle secret. Bearing in mind the nature of the disciplinary offence [in question] and the information in the case file, the Council has dismissed the defendant’s request that the proceedings be public, in order to protect the defendant’s dignity and the dignity of the judiciary as such. Pursuant to Article 294 paragraph 2 of the Code of Criminal Procedure, in conjunction with section 28 paragraph 1 of the National Judicial Council Act, the Council has allowed the presence of B.Š., employee of the UNHCR [United Nations High Commissioner for Refugees] at the hearings held on 1 and 7 October 1998, A.M.M., counsel for human rights at the OSCE [Organisation for Security and Co-operation in Europe] at the hearing held on 1 October 1998, and R.B., member of the OSCE mission to Croatia and his interpreter M.R. at the hearing held on 7 October 1998.”
On 10 November 1998 the Chamber of the Counties upheld the decision.
19. In his subsequent constitutional complaint of 2 December 1998, the applicant complained, inter alia, about the exclusion of the public from the disciplinary proceedings against him. He also alleged that three members of the National Judicial Council, namely A.P., V.M. and M.H., had been partial. He further complained that no witness called on behalf of the defence had been heard in the proceedings. On 9 December 2004 the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed the applicant’s complaint as ill-founded.
20. On 10 February 1997 an interview with V.M., a member of the NJC, was published in the national daily newspaper “Večernji list”. It was entitled “Olujić was a partisan candidate, not me”, and the relevant parts of the interview read as follows:
“In the case at issue the NJC established that for a long period of time Dr Olujić had had frequent public social contacts with two persons who not only had been convicted of numerous criminal offences, but against whom criminal proceedings are currently pending - in one case for assault on a policeman, and in the other for the trade of 1.5 kg of heroin - and that he had even intervened on their behalf. Dr Olujić was acquitted of all the other charges. All this harangue against the members of the NJC, and Dr Olujić’s defence, are focussed on the part [of the charges] of which he was acquitted, so now many persons are unhappy because it does not fit into what [the defence] presented. The [charges] for which Dr Olujić was found liable are clear on the facts. What is disputed is whether this amounts to a serious disciplinary offence and, if it does, which sanction is to be applied.
...
I joined Dr. Olujić’s request [for my withdrawal] because I publicly voted against his appointment as President of the Supreme Court, and I was also mentioned as a candidate for the post of President of the Supreme Court ...
... In the case at issue, telephone conversations were not a basis for the conviction because they concerned the part of the [charges] for which Dr. Olujić was acquitted. Therefore, all attempts to present the NJC’s decision as contrary to law have failed. All the evidence called by the defence referred to the [charges] of which he was acquitted, and it was therefore dismissed as unnecessary.”
21. On 28 March 1997 an interview with A.P., the then president of the National Judicial Council, entitled “Judges are appointed, but also created” was published in the same daily newspaper. The relevant parts of the interview read:
Question: “-The National Judicial Council has lately been mentioned in public mostly in connection with the ‘Olujić case’. What is the truth about the former Supreme Court President?
Answer: - The decision has been taken and reasons have been given in it. I don’t think that I have to explain a reasoned decision, everything was said in it. For me these proceedings are in the past.
Q: - However, for the sake of the public, which has received conflicting information about this case, could you be more specific?
A: - Since you insist, I shall just say that Dr Krunoslav Olujić has committed a disciplinary offence not only by “socialising” with perpetrators of numerous criminal offences, although this in itself is a serious matter for any president of the Supreme Court, but primarily because, while President of the Supreme Court, and aware of these individuals’ criminal activity, that is, that they belonged to the international criminal milieu, he used his personal influence and contacts in order to protect their interests and gains. Analysis of the evidence and defence [pleadings] clearly showed that the Government’s request to institute proceedings had in no way been politically motivated or a fabricated indictment put forward by the political and partisan elite, as Dr Krunoslav Olujić stated in his defence and alleged before the media, referring to the President of the Republic and the Government. On the contrary, the case is about indecent activities which are incompatible not only with the office of Supreme Court President, which Dr Krunoslav Olujić held for a short period, but with judicial ethics in general.
Q: - And what about the interception of telephone calls?
A: - The interception of telephone conversations concerned legally recorded telephone conversations between the above-mentioned perpetrators of numerous criminal offences, but not at all Dr Olujić’s telephone conversations. [Olujić] “was netted” by this operative measure, as one of the witnesses expressed it illustratively. The [National Judicial] Council assessed that evidence, together with all the other evidence, in line with the principle of free assessment of evidence, and it did not significantly influence its decision.”
22. On 22 September 1997 another national daily newspaper, “Slobodna Dalmacija”, published an interview with M.H., a member of the NJC and the then State Attorney. The relevant parts of the interview read:
“With regard to the statements about a lack of independence on my part and my reliance on Mr Šeks [president of Parliament], which were published in the weekly newspaper ‘Tjednik,’ in an article by journalist S. P., whose hand was guided by a gentleman whose career in the judiciary ended shamefully, I see them mostly as comical, as I do the author himself. These fabricated and unsupported statements, coming from a man who held a number of highly responsible functions in the Croatian judiciary, where, due to his lack of experience and knowledge, he was a corpus alienum (a foreign body), do not really deserve special attention because they belong to the place from which they originate, namely, the coffee-bars.”
23. The relevant part of the Constitutional Act on the Constitutional Court (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 13/1991), as in force at the material time, provided that everyone could lodge a constitutional complaint with the Constitutional Court if they considered that a judicial or administrative decision, or a decision of a legal entity invested with public authority, had violated their human rights or fundamental freedoms guaranteed by the Constitution (section 28). If the Constitutional Court allowed a constitutional complaint, it had to quash the impugned decision and remit the case to the competent authority for a new decision (section 30).
24. The relevant provisions of the National Judicial Council Act, as in force at the material time (Zakon o Državnom sudbenom vijeću, Official Gazette no. 58/1993) provide:
“The candidates for the [post of] President and members of the Council shall be nominated by the Chamber of the Counties of the Croatian Parliament.
Prior to the nomination of candidates, the Chamber of the Counties shall ask the Supreme Court, Minister of Justice, State Attorney, Croatian Bar Association and law faculties to draw up a list of suitable candidates.
...”
“The president and the members of the Council shall be elected by the Chamber of Representatives for a period of eight years from the ranks of notable judges, state attorneys, attorneys at law and law university professors having, in principle, at least fifteen years of experience.
The President and seven members of the Council shall be chosen from among the judges, four members from among the state attorneys and their deputies, one member from the attorneys at law and two members from the law professors.
The President and members [of the Council] shall not be members of Parliament.”
“Before taking up office the President and each member of the Council shall take [the following] oath before the President of Parliament:
‘I swear on my honour that I will exercise my functions as the President and member of the National Judicial Council diligently and in accordance with the Constitution and the laws of the Republic of Croatia.”
“The President and the members of the Council shall enjoy immunity.
The President or members of the Council shall not be held responsible for words spoken or votes cast [in the debates of] the Council.
The President or members of the Council shall not be subjected to arrest or criminal proceedings without the Council’s permission.
The President or members of the Council may be detained without the Council’s permission only if found perpetrating a criminal offence punishable by a prison term of more than five years. In such cases the body which has detained the President or a member of the Council shall promptly inform the Council.
...”
“...
The President or a member of the Council may be dismissed from his or her office before expiration of the term of office [for the following reasons]:
- if he or she resigns;
- if sentenced to imprisonment;
- if he or she permanently loses capacity to exercise his or her functions;
- if he or she accepts citizenship of another State.
The reasons for dismissal of the President or a member of the Council shall be established by the Parliament’s Chamber of Counties. The decision on dismissal shall be taken by the Parliament’s Chamber of Representatives.”
“...
An application for establishing permanent inability of a member of the Council to perform his or her function shall be lodged with the Parliament’s Chamber of Counties by the President of the Council. Such an application in respect of the President of the Council shall be lodged by at least five members of the Council.
...”
“The Council shall have competence in respect of:
- appointments of the presidents of courts, judges and state attorneys and their deputies;
- conduct of the proceedings and decisions on dismissal of presidents of courts and judges and on dismissal of state attorneys and their deputies.”
“The President of a court or a judge shall be subject of disciplinary liability when he or she commits a grave disciplinary offence.
Grave disciplinary offences are:
...
6. causing harm to the reputation of the judiciary or to judicial duty.”
“For a grave disciplinary offence one of the following measures may be imposed:
...
3. dismissal from office.
...”
“A president of a court or a judge punished for a disciplinary offence shall be entitled to lodge a request for protection against the Council’s decision with the Chamber of the Counties within 15 days after the Council’s decision is served on him or her.
The Chamber of the Counties shall uphold the decision on dismissal [from office] or quash it and remit the case to the Council for fresh proceedings and decision.
Where [the Council’s] decision is quashed the statutory time limits begin anew. There is no judicial review of the decision of the Chamber of the Counties.”
“Proceedings [before the Council] shall be conducted in accordance with the provisions of the Code of Criminal Procedure, if not otherwise provided in this Act.
... The Council may decide that the disciplinary proceedings shall be public.”
”Resources for the functioning of the Council are secured in the State budget.
The President of the Council shall coordinate implementation of the financial plan for the resources referred to in paragraph one of this section.”
“For their functions the President and the members of the Council are entitled to the compensation of costs, expenses and lost earnings, and to remuneration.”
25. Pursuant to Article 430 of the Code of Criminal Procedure (Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002, 143/2002 and 62/2003), where the defendant requests an amendment of a final judgment following a finding of a violation of, inter alia, the right to a fair trial, by the European Court of Human Rights, the rules governing a retrial shall apply.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-97993
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF HANDOLSDALEN SAMI VILLAGE AND OTHERS v. SWEDEN
IMPORTANCE: 3
CONCLUSION: No violation of Art. 6-1;Violation of Art. 6-1;Pecuniary damage - award;Non-pecuniary damage - award
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall
TEXT: 6. The applicant Sami villages are all situated in the municipality of Härjedalen in the county of Jämtland.
7. The Sami have, since ancient times, inhabited the northern parts of Scandinavia and the Kola Peninsula. Originally living by hunting, fishing and collecting, the Sami activities changed over time to concern mainly reindeer herding. Their historical use of the land has given rise to a special right to real estate, the reindeer herding right (renskötselrätten). Presently regulated in Sweden by the Reindeer Husbandry Act (Rennäringslagen, 1971:437), it comprises the right to use land and water for the Sami's own sustenance and that of his reindeer. The right may only be exercised by the members of a Sami village. Such villages are both geographical grazing areas and economic entities. They do not have any public legal status (see Könkämä and 38 Other Sami Villages v. Sweden, no. 27033/95, Commission decision of 25 November 1996, Decisions and Reports 87, p. 85 in fine). The reindeer herding area comprises approximately one-third of the surface of Sweden and is divided into all-year land and winter grazing land. In certain parts of the country, the borders of the herding area are controversial and have not been statutorily defined, especially as concerns the winter grazing land.
8. On 20 September 1990 a large number of private owners of land in the municipality of Härjedalen instituted proceedings against five Sami villages, the four applicants and the Idre Nya Sami village, before the District Court (tingsrätten) of Sveg. On 4 June 1991 more landowners initiated a similar action against the Sami villages. The landowners sought a declaratory judgment (negativ fastställelsetalan) that the Sami villages had no right to reindeer grazing on their land without a valid contract to that effect concluded between the landowner and the village.
9. On 26 June 1991 the District Court issued a summons and decided that the two cases were to be examined jointly. At a preparatory meeting on 16 September 1991, the court rejected the villages' request for dismissal of the cases on procedural grounds.
10. On 25 November 1991 the Sami villages submitted their response, contesting the landowners' action. The villages claimed that they had the right to winter grazing within their respective areas based on (1) prescription from time immemorial (urminnes hävd), (2) the provisions of the reindeer grazing and reindeer husbandry acts of 1886, 1898, 1928 and 1971, (3) custom, or (4) public international law, more specifically Article 27 of the UN Convention on Civil and Political Rights, as compared with Chapter 1, section 2, of the Instrument of Government (Regeringsformen).
11. Following three extensions of the time-limit fixed by the District Court, the landowners replied to the Sami villages' submissions on 10 April 1992. An additional preparatory meeting was held on 27 August 1992, at which the parties discussed, inter alia, the possibility of reaching a settlement. Furthermore, the villages were ordered to elaborate on their claim based on custom and to specify their means of evidence. They did so on 23 December 1992 following two extensions of the time-limit set. At the same time, they requested that the court inspect some of the properties concerned.
12. On 27 May 1993, having been granted several extensions, the landowners submitted a specification of the means of evidence offered. During the following months, the parties exchanged views on questions of evidence and submitted specifications of supplementary evidence. On 9 May 1994 the District Court sent a summary of the respective positions to the parties for comments. A further preparatory meeting took place on 18 May 1994.
13. During the summer and autumn of 1994, further comments were exchanged. On 26 and 27 October 1994 a preparatory meeting was held in order to plan the schedule for the main hearing. Between December 1994 and June 1995, further views were exchanged, among other things on the Sami villages' request for an inspection.
14. By a decision of 22 June 1995, the District Court rejected the request for an inspection on the ground that the villages had not shown that an inspection of certain properties was necessary for an examination of whether they had a right to winter grazing on the land in question.
15. The parties were summoned for the main hearing at the beginning of August 1995. On 1 September 1995 some more landowners initiated a similar action against the Sami villages. This case was joined to the other two.
16. The main hearing started on 18 September and ended on 25 October 1995. It lasted for 16 days. The District Court heard a large number of experts and witnesses and had regard to substantial documentary evidence. During the hearing, as well as on seven previous occasions, the court struck out the case in regard to some of the landowners following withdrawal of the action on their part. The three joined cases eventually comprised property belonging to 571 landowners.
17. Having examined the developments of the Sami culture and reindeer herding since prehistoric times, the District Court issued a 192-page judgment on 21 February 1996. It found that, from the 16th to the late 19th century, there had not been any winter grazing which had established a right for the Sami to such grazing on the relevant properties and that, from the late 19th century, the actual winter grazing, as annually recorded by the socalled Lapp bailiffs (lappfogdar), had not lasted long enough in the respective parishes to create a right to grazing on those properties based on prescription from time immemorial, such prescription requiring at least 90 years' use of the land. For these reasons, the Sami villages could not claim a right to use the properties under the various laws, including the Reindeer Husbandry Act presently in force. Moreover, the court found that a right to real property could not legally be established through “custom” and that a right to winter grazing on the properties in question could not be based on the provisions of the UN Convention and the Instrument of Government. The court therefore concluded that there was no right of the Sami villages to reindeer grazing on the plaintiffs' land without a valid contract and accordingly gave judgment in favour of the landowners. The court ordered the Sami villages jointly to pay the plaintiffs' legal costs, amounting to approximately 4,000,000 Swedish kronor (SEK; about 400,000 euros (EUR)).
18. On 15 March 1996 the Sami villages appealed to the Court of Appeal (hovrätten) of Nedre Norrland. They demanded that the District Court's judgment be quashed, that the landowners' action be rejected and that the decision on litigation costs not be enforced. They completed their appeal on 2 September 1996.
19. On 8 November 1996 the landowners responded and requested that the Sami villages not be allowed to invoke circumstances in their defence that had not been presented to the District Court. In a submission of 20 December 1996, the villages, on their part, made an additional demand that the District Court's judgment be set aside and the case remitted to that court on the ground that a procedural error had occurred. During the following months, the parties exchanged views on these and other matters. The landowners submitted their comments on the villages' additional demand on 2 June 1997.
20. By a decision of 16 June 1997, the Court of Appeal ruled on twelve different procedural issues. Among other things, it rejected the Sami villages' request that the appealed judgment be set aside and the case remitted. It also rejected the landowners' request that the villages not be allowed to invoke certain circumstances in their defence, with one exception. Thus, the court did not allow the villages to argue that winter grazing without protests from landowners for a period of less than 90 years would qualify for a continued right to such grazing based on prescription from time immemorial or the provisions of the reindeer grazing and reindeer husbandry acts. Furthermore, the Court of Appeal rejected the Sami villages' requests for an inspection of the locus in quo and for an order against the landowners to produce maps of the areas concerned. In its reasons for the various rulings, the court referred, inter alia, to the provisions of the Code of Judicial Procedure (Rättegångsbalken) concerning the conditions for invoking new circumstances and evidence not previously examined by the District Court.
21. On 18 June 1997 the parties were ordered to complete their respective actions by the end of October 1997.
22. On 24 September 1997 the Sami villages claimed that there was a procedural hindrance (rättegångshinder) as they lacked the capacity to act as parties in relation to the issue concerned by the proceedings in question. By a decision of 4 November 1997, the Court of Appeal rejected this claim, stating that, under the provisions of the Reindeer Husbandry Act, they had the necessary legal capacity. On 1 December 1997 the villages appealed against that decision to the Supreme Court (Högsta domstolen). At their request, the Court of Appeal granted the villages an extension of the time-limit set for the completion of their appeal until the Supreme Court had rendered its decision on the procedural issue. By a decision of 18 February 1999, the Supreme Court refused the villages leave to appeal.
23. In a submission of 4 March 1999, the Sami villages demanded that the State, through the Chancellor of Justice (Justitiekanslern), intervene on their side in the proceedings. At the end of May 1999, the Chancellor informed the Court of Appeal that he did not intend to apply to participate in the proceedings.
24. In March and July 1999 the Sami villages were ordered to complete their appeal, which they did on 11 October 1999, after having been granted extensions of the time-limits set. Shortly thereafter, the landowners were ordered to submit the means of evidence they invoked, which they did on 21 February 2000, also following time-limit extensions.
25. In January 2000 the landowners applied for the Sami villages' appeal to be dismissed and in February 2000 the villages reiterated their demand that the District Court's judgment be quashed and the case remitted. By a decision of 19 December 2000, the Court of Appeal rejected these requests.
26. On 7 November 2000 the Sami villages requested that the court obtain an opinion from an expert (sakkunnig). Following the landowners' objection and the villages' further comments, the court rejected this request on 8 March 2001.
27. In January 2001 the court ordered the parties to make submissions on the question of which landowners were to be considered opposite parties in the appellate proceedings. The Sami villages submitted several comments between January and April 2001 and the landowners made their submissions in May and August 2001, after extensions of the time-limits set.
28. On 31 May 2001, having interpreted one of the landowners' submissions as a motion for dismissal of the Sami villages' appeal, the Court of Appeal rejected that motion. On 18 June 2001 the villages adduced some written evidence not previously presented. The landowners objected to that evidence but, by a decision of 5 September 2001, the court allowed the villages to present it.
29. The main hearing in the Court of Appeal was held between 1 and 31 October 2001 and lasted 16 days. The appellate court heard the same evidence as the District Court and, as already mentioned, some additional written evidence introduced by the Sami villages.
30. Following some landowners' withdrawal of their action and the Idre Nya Sami village's withdrawal of its appeal, the Court of Appeal, by decisions of 8 October and 16 November 2001, struck out the case and set aside the District Court's judgment – including the Idre Nya Sami village's liability for litigation costs – in so far as it concerned these same parties.
31. By a judgment of 15 February 2002, the Court of Appeal upheld the District Court's judgment and ordered the applicants to pay the plaintiffs' legal costs in the appellate proceedings, amounting to approximately SEK 2,900,000 (about EUR 290,000).
32. The Court of Appeal initially referred to the conclusion by the Supreme Court in the so-called “Taxed Mountains Case” (Skattefjällsmålet, NJA 1981, p. 1) that the rights pertaining to reindeer herding were exhaustively regulated by the Reindeer Husbandry Act. Consequently, the right of winter grazing was dependent on the conditions for prescription from time immemorial being met, those conditions having been regulated in the old Land Code (Jordabalken) of 1734.
33. As regards prescription from time immemorial and the burden and standard of proof in this respect, the Court of Appeal stated the following:
“Under Chapter 15, section 4 of the old Land Code, the following applied to proof of prescription from time immemorial. 'If someone pleads prescription from time immemorial and fault is found with this claim, let him then show by means of old letters and writings deemed sufficient in law, or by means of credible men who have good local knowledge and can bear witness, on oath, that they neither know themselves nor have heard from others that the situation has ever been different. If he is unable to do this, the prescriptive right shall then be without force and effect.' According to the preparatory works for the 1928 Reindeer Grazing Act and the [1971] Reindeer Husbandry Act, in cases subject to dispute, the question of whether a right to winter grazing applies in a certain area is to be examined by a court on the basis of the evidence that is required under general law for proof of prescription from time immemorial (see Government Bill 1928:43, p. 71, and Government Bill 1971:51, p. 158). The burden of proof that winter grazing has taken place on the property owner's land to such an extent that the Sami villages have a right to continued winter grazing may therefore be deemed to rest with the Sami villages.
In this case, the Sami villages claim that a right to winter grazing based on prescription from time immemorial has come into being as Sami have been in Härjedalen since prehistoric times, as reindeer were early on associated with the Sami culture, as reindeer management took on a completely nomadic form in the late sixteenth century or, at all events, during the seventeenth century, and it can be assumed that even then, in the winter, depending on the weather conditions and access to food, the reindeer belonging to the Sami wandered in search of food, and as the custom that developed at that time has endured until modern times. However, in the opinion of the Court of Appeal, for a right to winter grazing on the disputed lands to be deemed to have arisen on the basis of prescription from time immemorial, it must be required in addition that the results of the investigation indicate with sufficient strength that Sami have used the lands in question or parts of them for winter grazing for their reindeer with at least some regularity without hindrance, that is, without objection from other holders of rights.”
The court further held that account had to be taken of the special features of reindeer husbandry. The herding required much space and necessitated movement between various grazing areas. The right to winter grazing based on prescription could not require that reindeer grazed in a particular area every winter. However, a basic condition for that right was that the area had been used in such a way that every instance of grazing could be seen as part of a recurring pattern, although absence from the area in question could be more or less prolonged.
34. The Court of Appeal examined extensive evidence dating back several hundred years and drew the following conclusions. As regards the period before the entry into force of the Reindeer Grazing Act of 1886 (most notably, the 17th, 18th and 19th centuries), it had not been shown that free winter grazing – that is, in the absence of contracts or the authorities' permission – had taken place in Härjedalen. On the contrary, the individual landowners had protested against reindeer grazing on their land. At the time of the enactment of the 1886 and 1898 Acts, the disputes between the domiciled population and the nomadic Sami about the use of the land at issue had been particularly sensitive in Härjedalen, and the investigation did not show that any winter grazing had occurred outside the boundaries of the “reindeer grazing mountains”. According to the evidence presented with respect to the situation in the 20th century, grazing outside these mountains had existed during wintertime only in limited areas and protests from landowners had been commonplace.
35. The appellate court thus found, in agreement with the District Court, that, before the 20th century, there had not been such winter grazing outside the reindeer grazing mountains which, together with the grazing that had taken place during the 20th century, could create a right to use the relevant properties on the basis of prescription from time immemorial. The longest period in the latter century during which winter grazing had occurred in one area without landowners' objections was 50 years, thus insufficient to establish a right based on prescription.
36. The applicants appealed to the Supreme Court on 19 March 2002. Their appeal was completed on 22 May 2002. In the following months, they submitted documents as to the question of who was to represent them before the Supreme Court.
37. On 29 April 2004 the Supreme Court refused the applicants leave to appeal.
38. The Sami Fund (Samefonden) has granted the applicants a loan of SEK 14,700,000 (approximately EUR 1,470,000) to pay the litigation costs incurred in the domestic proceedings. The loan, which is free of interest, is due on 30 November 2010.
39. The nature and scope of Sami rights to land and water are governed by the Reindeer Husbandry Act. A person of Sami descent may use land and water in order to maintain himself and his reindeer (section 1). The reindeer herding right is a usufruct of economic value founded on prescription from time immemorial (section 1, subsection 2). It is to be exercised irrespective of contracts and free of charge, without limitations in time and space and on land belonging to the State as well as to private subjects, in accordance with the conditions laid down in sections 15-25 of the Act. These provisions also contain restrictions on the exercise of such rights depending, inter alia, on whether the land belongs to the State or to private subjects. The reindeer herding right includes the right of members of a Sami village to engage in hunting and fishing, to graze reindeer and to erect certain structures and buildings needed for reindeer herding, as well as to collect wood and timber from the forests. It pertains to all Sami, but may only be exercised by members of a Sami village.
40. Section 3 of the Act defines the areas where reindeer herding may be conducted (renskötselområdet). In so far as the county of Jämtland is concerned, herding may be carried out throughout the year on the so-called “reindeer grazing mountains” (renbetesfjällen) and in those areas within the county which, at the end of June 1992, belonged to the State and were made available specifically for reindeer grazing. Winter grazing may be carried out from 1 October to 30 April in such areas outside the reindeer grazing mountains where, since time immemorial, reindeer grazing has been conducted during certain times of the year.
Section 3, subsection 2, defines “reindeer grazing land” as land that has been declared to constitute reindeer grazing land through the process of delimitation of Crown lands (avvittring, that is, a process taking place between the 17th and the 20th centuries with the aim of separating private land from Crown land and imposing taxes on the former) or that has been used as such land since time immemorial. The notion of “reindeer grazing mountains” refers to mountains reserved for the Sami for reindeer grazing through the process of delimitation of Crown lands and the areas which have since then been made available for extension of the mountain grazing areas.
41. A Sami village is a geographical grazing area and an economic entity. Its main object is to manage reindeer herding within the grazing area of the village to the common benefit of its members (section 9). A village may acquire rights and undertake commitments and represents its members with regard to issues related to reindeer husbandry (section 10). The members of a Sami village are Sami who participate or have participated in reindeer herding within the community's grazing area, as well as their closest family members (section 11).
42. As mentioned above, the reindeer herding right is based on prescription from time immemorial. This was specified in the Reindeer Husbandry Act through a 1993 amendment, following the Supreme Court's conclusion in the “Taxed Mountains Case” that the right to certain mountain areas in northern Sweden could be based on prescription from time immemorial in combination with occupation. Provisions on ownership and other, more limited, rights to land based on prescription from time immemorial are mainly found in the old Land Code of 1734. For a right of ownership or usufruct based on such prescription to arise, the land had to have been occupied or used for such a long time that nobody knew or had heard that the situation had ever been different (Chapter 15, section 1, of the old Code).
43. The qualification period required is estimated to be approximately 90 years (see Bengtsson, Samerätt, 2004, p. 79, with references). Section 6 of the Act on Implementing the new Land Code (Lagen om införande av nya jordabalken; 1970:995) stipulates that the provisions of the new Land Code are not to interfere with any rights to land based on prescription from time immemorial that have arisen before the new Land Code came into force (1 January 1972). This implies that any historical provision that could have given a person or entity rights to certain land before that date is still valid. As more specifically regards the Sami right to winter grazing based on prescription from time immemorial, the area has not been geographically demarcated in the Reindeer Husbandry Act. If there is a dispute about whether a particular piece of land has traditionally been used for herding during certain times of the year – and thus may be used for winter grazing – the issue is to be decided by the courts on the basis of the evidence presented (see Government Bill 1928:43, p. 71, Government Bill 1971:51, p. 158, and the report by the Reindeer Husbandry Policy Committee, SOU 2001:101, p. 169).
44. Under section 6 of the Legal Aid Act (Rättshjälpslagen, 1972:429) in force at the material time, legal aid could be given to natural persons who fulfilled certain conditions, in particular that their financial resources were limited. A legal entity like a Sami village was thus not entitled to legal aid.
45. The Sami Fund is regulated in sections 16-28 of the Reindeer Husbandry Ordinance (Rennäringsförordningen, 1993:384). The Fund's purpose is to subsidise and promote reindeer husbandry, Sami organisations and Sami culture. As regards the promotion of reindeer husbandry, the subsidies can be used for the purchase and lease of land for reindeer herding, rationalisation of reindeer husbandry and other measures. The means are administered by the Legal, Financial and Administrative Services Agency (Kammarkollegiet). Decisions on how the means are to be used are taken by the board of the Sami Fund, which consists of six persons of Sami origin.
46. The revenue of the Sami Fund mainly consists of charges for leases to others than reindeer owners of land belonging to the State where reindeer husbandry may be carried out all the year round. Such revenue, which includes, for instance, licensing fees for hunting and fishing, is divided equally between the Sami village concerned and the Sami Fund.
47. In its budget proposal for 2009 (Government Bill 2008/2009:1), which was approved by Parliament, the Government laid down that some of the revenue of the Sami Fund could be used to part-finance the lease of land for winter grazing in the areas concerned in the present case.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-100389
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF BALOGA v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste
TEXT: 4. The applicant, Mr Petro Ivanovych Baloga, is a Ukrainian national who was born in 1963 and lives in Fediyivka village, Kirovograd region, Ukraine.
5. At the material time, the applicant was a district police officer.
6. On 25 October 2000 the local prosecutor's office instituted criminal proceedings against the applicant, charging him with abuse of authority and forgery. It was alleged, in particular, that during February and March 1999 the applicant had drawn up a number of reports of administrative offences and forged the signatures of imaginary offenders in order to embellish his work statistics. However, the offenders mentioned therein did not exist.
7. On 27 June 2002 the Bobrynets District Court (hereinafter referred to as “the District Court”) found that the acts imputed to the applicant had ceased to be a danger to society. Accordingly, it ruled that he was no longer liable and discontinued the proceedings against him. The applicant appealed.
8. On 26 November 2002 the Kirovograd Regional Court of Appeal (hereinafter referred to as “the Court of Appeal”) quashed the decision of 27 June 2002, having noted that the lower court had not verified whether the applicant had consented to the discontinuation of the proceedings against him, and that it had examined the case in the applicant's absence. It ruled, however, to discontinue the proceedings against the applicant. According to the applicant's submissions he was not provided with a copy of that decision in due time and this therefore caused delays in appealing in cassation against it.
9. From 27 November 2002 to 8 March 2004 no hearings were held.
10. On 9 March 2004, having allowed the applicant's appeal in cassation, the Supreme Court found that, contrary to the requirement of the law, the courts in both instances had examined the case in the applicant's absence and that they had discontinued the proceedings against him without his consent. Accordingly, it quashed the ruling of 26 November 2002 and remitted the case for fresh consideration to the Court of Appeal.
11. On 22 June 2004 the Court of Appeal quashed the decision of 27 June 2002 and ordered a retrial.
12. On 7 September and 12 November 2004 the court hearings were adjourned owing to the applicant's failure to attend them. The applicant asserted in this regard that he had not been duly summoned.
13. On 12 November 2004 the District Court ordered the police to secure the applicant's attendance at the next court hearing. According to the applicant, he was brought to the hearing on 24 November 2004.
14. According to the applicant, on 25 January 2005, he was again brought by the police to the District Court. However, he alleges that this was without a proper court order.
15. According to the Government's submissions, the applicant failed to appear on 8 February 2005.
16. On 16 February 2005 the District Court found the applicant guilty of abuse of authority and forgery but amnestied him.
17. On 12 April 2005 the Court of Appeal, pointing out a number of shortcomings of the lower court (for example, the failure to indicate in the judgment the punishment given to the applicant, the failure to indicate the date of the amnesty act referred to, the failure to resolve the matter of court fees), quashed the judgment of 16 February 2005 and ordered a retrial.
18. The applicant appealed in cassation. On 18 July 2005 the Supreme Court rejected his request for leave to appeal.
19. Meanwhile, on 11 and 18 May 2005 the applicant failed to appear. Owing to the applicant's failure to comply with the court summons, the District Court ordered the police to secure the applicant's attendance at the court hearing. According to the applicant, these orders were enforced on 25 May 2005.
20. On 25 May 2005 the District Court found the applicant guilty of the aforesaid crimes and sentenced him to one year's imprisonment. The court also banned the applicant from holding positions in the organs of the Ministry of the Interior. By the same judgment the court amnestied the applicant.
21. On 16 August 2005 the Court of Appeal upheld the judgment of 25 May 2005.
22. On 25 April 2006 the Supreme Court rejected the applicant's appeal in cassation. However, it ruled that the applicant should be exempted from punishment because the statutory time-limit for prosecuting him had elapsed.
23. According to the records provided by the Government the adjournments due to the applicant's failure to appear caused a delay of almost six months.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-78561
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF VERLAGSGRUPPE NEWS GMBH v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 10;Pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 7. The applicant company is the owner and publisher of the weekly magazine News and has its registered seat in Vienna.
8. In June 2000 the Vienna City Counsel for Cultural Affairs (Kulturstadtrat), Mr Marboe, authorised the performance of Mr Schlingensief's “Container Action” during the Vienna International Festival (Wiener Festwochen). The staging took place in a container where actors figured as asylum seekers in Austria who were successively voted out for expulsion by the public. This container action met severe criticism by the public, inter alia, by members of the Austrian Freedom Party (FPÖ).
9. On 30 June 2000 the newspaper Kurier published an open letter to Mr Marboe written by the Austrian artist André Heller, in which he thanked and congratulated Mr Marboe for having allowed Mr Schlingensief's performance. One passage of the open letter read as follows:
“... It is not to be expected that the Haiders, Böhmdorfers, Westenthalers, Riess-Passers, Mölzers, and whatever else these spiritually depraved political upstarts and their various beer-tent entertainers may be called, will have the slightest awareness of how embarrassing, dastardly and frequently absurd they are. ...
(German)
... Man kann von den Haiders, Böhmdorfers, Westenthalers, Riess-Passers, Mölzers und wie diese seelenhygienisch heruntergekommenen Politemporkömmlinge und ihre sonstigen Bierzeltanimateure heißen mögen, nicht die geringste Einsicht in ihre eigene Peinlichkeit, Niedertracht und häufige Absurdität verlangen. ...”
10. Subsequently the FPÖ politicians quoted in this letter, except for Mr Mölzer, filed private prosecution proceedings for defamation against Mr Heller, which they withdrew later on.
11. On 7 September 2000 the applicant company published the following article on page 46 of its issue no. 36/00:
“Lawsuit against André Heller
FPÖ grandees sue critical artist André Heller. They are not 'spiritually depraved', they maintain.
Böhmdorfer is suing Heller. He is not alone, though: Jörg Haider, Peter Westenthaler and Susanne Riess-Passer have all launched a powerful attack on André Heller with the assistance of the law firm Böhmdorfer-Gheneff Rechtsanwälte KEG.
The reason is that the artist André Heller, a critic of the Government, wrote an 'open letter' in the Kurier lavishing praise on the Vienna city councillor for cultural affairs, Peter Marboe (ÖVP). Shortly before this, however, Peter Marboe had allowed Schlingensief's provocative container to be installed outside the Vienna State Opera House as a spectacle for the International Festival – despite bitter opposition from the Kronen Zeitung, a furious Vienna FPÖ and the Minister of Justice, Dieter Böhmdorfer, who threatened prosecution.
André Heller wrote in the Kurier at the time: 'It is not to be expected that the Haiders, Böhmdorfers, Westenthalers, Riess-Passers, Mölzers, and whatever else these spiritually depraved political upstarts and their various beer-tent entertainers may be called, will have the slightest awareness of how embarrassing, dastardly and frequently absurd they are' (end of quotation). Böhmdorfer & Co. will not stand for this humiliation. They have instructed Böhmdorfer-Gheneff KEG, with which the Minister of Justice severed ties in March, to file a peppery lawsuit against Mr Heller.
'Dastardly'. In the private lawsuit it was stated that the allegations made in Mr Heller's letter were 'untrue' and that the 'unsubstantiated accusation' that Böhmdorfer & Co. were “dastardly” amounted to 'what would appear to be an absolutely classic case of defamation within the meaning of the Criminal Code'. The same applied to the expression 'spiritually depraved political upstarts'.
Huberta Gheneff-Fürst, now the sole partner of the law firm to which the current Minister of Justice Mr Böhmdorfer still belonged six months ago, has called for André Heller to be given 'punishment commensurate with his guilt' as the person responsible for the deceitful smear.
Last stop Maurer. As has happened in a number of similar cases, André Heller could be acquitted of defamation at first instance, since an artist really should have the right to express strong criticism. But at final instance Judge Ernest Maurer, known to be FPÖ-friendly, could come into the frame. Ernest Maurer was appointed to the Austrian Broadcasting Corporation's board of governors by the FPÖ, and that creates at least an appearance of bias.
Suspicion. Even the President of the Judges' Association, Barbara Helige, is somewhat astonished at Ms Gheneff-Fürst, especially as the lawyer persists in retaining 'Böhmdorfer' in the law firm's name: 'If a former partner of the current Minister of Justice is stressing how important it is for Böhmdorfer's name to appear on the law firm's notepaper, the uninformed observer will suspect there is something political behind it.'
Indeed.”
Above the article a photo showing Mr Westenthaler standing between Mr Haider and Mr Böhmdorfer was published.
12. Mr Westenthaler, one of the FPÖ politicians concerned, filed a request for forfeiture of the applicant company's issue no. 36/00 of 7 September 2000.
13. On 9 October 2000 the St. Pölten Regional Court (Landesgericht), after having held a hearing, granted this request pursuant to section 33 § 2 of the Media Act and ordered the applicant company to pay the costs of the proceedings.
14. The court noted in its reasoning that the quoted passage consisted of value statements which insulted the plaintiff within the meaning of Article 115 of the Criminal Code (Strafgesetzbuch). The fact that the article merely quoted the impugned statements and had reported in a neutral manner about the criticism at issue was irrelevant for the proceedings under section 33 of the Media Act. In the light of Article 10 of the Convention, the court nevertheless expressed doubts as to the constitutionality of section 33 of the Media Act as it did not provide for protection of a correct quotation of an incriminated passage at stake in pending defamation proceedings. Thus, in the court's view, comprehensive reporting and criticism about pending defamation proceedings would be rendered practically impossible.
15. The applicant company appealed, arguing that the forfeiture infringed its right to freedom of expression under Article 10 of the Convention.
16. On 4 April 2001 the Vienna Court of Appeal (Oberlandesgericht) upheld the Regional Court's decision in essence. The court first noted that the article showed by its appearance and structuring that it did not intend neutral reporting. The court referred in this regard to the repeated hints to Mr Böhmdorfer, the allusions to the political motivations and misuse of the law-suits and the passage concerning the outcome of the defamation proceedings before the Court of Appeal, which in particular expressed that an artist should have the right to sharp criticism. The court further noted that the passage at issue had to be assessed in the light of the article as a whole. In this regard, the court found that the reporting style used was typical for News, namely the use of special layout, highlighting certain words in bold or italics and adding pictures etc., which aimed at influencing the reader unconsciously. The first part of the article, including the passage at issue, might still be regarded as objective reporting when being assessed isolated. Furthermore, however, the subtitle of the subsequent passage, namely the word “dastardly” written in bold, caught the reader's eye and focused his mind in an unambiguous direction, incriminating the plaintiff. Even though the subsequent passage merely dealt with the contents of the law-suits, it conveyed to the reader that the plaintiff was in fact dastardly as some words were emphasised in italics and thereby attained independent significance. The court concluded that the article had not limited itself in objective citation. The first instance court had falsely classified the article as reporting on court proceedings as such reporting presumed the existence of court trials whereas in the present case there had only been a private prosecutors' action. When balancing the interests involved, i.e., the right to freedom of expression of the applicant company on the one hand, and the interest of the plaintiff not to be defamed, on the other, the court found in favour of the latter. It noted that even accepting that there was a public interest in the subject matter at issue, the allegation against the plaintiff, namely that he had a dastardly character without having provided any factual basis for this assertion, defamed him within the meaning of Article 111 of the Criminal Code and was worthless information for public debate. Therefore, it exceeded the limits of lawful criticism under Article 10 of the Convention. Thus, the interference with the applicant company's right to freedom of expression, namely the forfeiture of the above issue, was necessary and also proportionate to the aim pursued. This all the more as forfeiture concerned in general only older issues with no relation to the present actuality and with merely historical interest.
17. Finally, the Court of Appeal did not share the Regional Court's concern as regards a possible unconstitutionality of section 33 of the Media Act. The court noted that, in any way, the criteria set up under Article 10 of the Convention had to be considered when assessing whether or not a statement concerned established an offence within the meaning of Article 111 of the Criminal Code.
18. This decision was served on the applicant company's lawyer on 26 April 2001.
19. Article 111 of the Criminal Code (Strafgesetzbuch) provides:
“1. Anyone who in such a way that it may be perceived by a third party accuses another of possessing a contemptible character or attitude or of behaviour contrary to honour or morality and of such a nature as to make him contemptible or otherwise lower him in public esteem shall be liable to imprisonment not exceeding six months or a fine...
2. Anyone who commits this offence in a printed document, by broadcasting or otherwise in such a way as to make the defamation accessible to a broad section of the public shall be liable to imprisonment not exceeding one year or a fine...”
20. Article 115 of the Criminal Code provides:
“1. Anyone who, in public or in the presence of several others, insults, mocks, mistreats or threatens to mistreat a third person, shall be liable to imprisonment not exceeding three months or a fine ... unless he is liable to a more severe penalty under another provision...”
21. A specific sanction provided for by the Media Act is forfeiture (Einziehung) of the publication concerned (section 33). Forfeiture may be ordered in addition to any normal sanction under the Criminal Code (section 33 § 1).
22. Forfeiture can also be ordered in separate so-called “objective” proceedings for the suppression of a publication, as provided for under section 33 § 2 of the Media Act, by virtue of which:
“Forfeiture shall be ordered in separate proceedings at the request of the public prosecutor or any other person entitled to bring claims if a publication in the media satisfies the objective definition of a criminal offence and if the prosecution of a particular person cannot be secured or if conviction of such person is impossible on grounds precluding punishment, has not been requested or such a request has been withdrawn...”
VIOLATED_ARTICLES: 10