ITEMID: 001-106636
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF AGROKOMPLEKS v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Preliminary objection joined to merits and dismissed (applicability);Remainder inadmissible;Violations of Art. 6-1;Violation of P1-1;Just satisfaction reserved
JUDGES: Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger
TEXT: 5. The applicant company is a private company registered in Ukraine. At the time of the events it carried out barter trade operations with Russian companies involving, in particular, exchange of some food raw materials from Ukraine for Russian crude oil and further sale of finished oil products.
6. On 18 December 1991 the applicant company signed a contract with the Lysychansk Oil Refinery (“the Refinery” – the biggest company in the oil refining industry in the country at the time, with 67.41% of its shares being owned by the State) for the refining of 225,000 tons of crude oil.
7. On 5 March 1993 the Higher Arbitration Court (“the HAC”), allowing a claim brought by the applicant company, directed the Refinery to deliver to the applicant company the oil products produced from its raw materials.
8. During June and July 1993 the Refinery only delivered a small part of the oil products to the applicant company.
9. On 19 August 1993 the applicant company supplied another 150,000 tons of crude oil to the Refinery for refining.
10. In autumn 1993 the State-owned companies in the Lugansk region involved in harvesting, coal mining and other activities essential for the local economy suffered a particularly acute shortage of fuel. As a part of the emergency measures instituted to overcome the crisis, the local authorities directed the Refinery to provide for local needs, free of charge, some oil products, regardless of whether they had been produced from oil owned by customers.
11. Following a further claim brought by the applicant company, on 18 November 1994 the HAC ordered the Refinery to comply with the contract of 19 August 1993.
12. At some point the Refinery was renamed LysychanskNaftoOrgSyntez (“LyNOS”).
13. By a ruling of 5 April 1995, the HAC amended its judgment of 5 March 1993 and ordered LyNOS to pay the applicant company for the undelivered oil products.
14. On 26 April 1995 the Cabinet of Ministers instructed the State Department for the Oil, Gas and Oil Refining Industries (“Derzhnaftogazprom”) to verify whether the applicant company’s claims against LyNOS were justified. As can be seen from a letter from Derzhnaftogazprom to Parliament of 6 May 1995, it found the claims to be well grounded. It was noted in the letter, in particular, that the main reason for the Refinery’s failure to comply with its contractual obligations vis-à-vis the applicant company had been the unpaid diversion of oil products by the regional authorities in 1993.
15. On 19 July 1996 the HAC awarded the applicant company compensation for the lengthy non-enforcement of the judgments of 5 March 1993 and 18 November 1994 and ordered that the court fees be paid by LyNOS.
16. On 22 July 1996 the applicant company applied to the HAC for the initiation of insolvency proceedings against LyNOS, referring to the lengthy non-enforcement of the judgments of 5 March 1993 and 18 November 1994.
17. On 9 August 1996 the Poltava Regional Arbitration Court (“the Poltava Arbitration Court”), to which the HAC had referred the aforementioned motion of the applicant company, started insolvency proceedings.
18. On 3 March 1997 it made a preliminary finding that the outstanding debts of LyNOS vis-à-vis the applicant company had been confirmed by documentary evidence as 169,323,720 Ukrainian hryvnias (UAH) and 77,802 tons of oil products.
19. On 10 July 1997 the applicant company asked the HAC to secure the creditors’ claims by seizing the State’s shares in LyNOS.
20. On 15 July 1997 the court allowed the request and prohibited “[LyNOS], the State Property Fund and any other authorities from taking any action with a view to transferring ownership or changing the status of the State’s shares in [LyNOS] until the court completes the [insolvency proceedings].”
21. On 30 July 1997 the Prosecutor General’s Office informed the HAC’s President of the results of its investigation into the reasons for the arrears and the insolvency of LyNOS. It concluded, inter alia, that LyNOS’s debts vis-à-vis its customers had mainly been caused by the unpaid diversion of oil products for State needs in 1993.
22. On 20 August 1997 the applicant company concluded an agreement with LyNOS concerning the procedure for and conditions of repayment of the latter’s arrears resulting from the judgments of the HAC of 5 March 1993 and 18 November 1994, as well as the ruling of the Poltava Arbitration Court of 3 March 1997. Having signed that agreement, the debtor recognised its debt vis-à-vis the applicant company in the amount of UAH 225,355,355, which was, according to the agreed schedule, to be repaid in kind within five years. The parties also underlined that the agreement could not be understood as a friendly settlement and did not imply a request for termination of the insolvency proceedings against LyNOS.
23. On 18 November 1997 the HAC stayed the proceedings until the debtor, the creditors and the competent authorities had agreed on guarantees for the repayment of the arrears.
24. On 3 December 1997 the applicant company requested that the Prime Minister consider the possibility of transferring the State’s shares in LyNOS, equal to 26% of its share capital, into its trust for the period of the repayment of the arrears as a guarantee of that repayment.
25. On 14 January 1998 the HAC resumed the insolvency proceedings.
26. On 29 January 1998 it decided to leave unexamined the outstanding claims of LyNOS’s creditors. At the same time, referring to the need to continue to make efforts to settle the creditors’ claims and prevent the debtor’s insolvency, the court decided to conduct further review of the parties’ actions in that connection. Namely, it instructed LyNOS and the creditors whose claims remained unsettled to inform it on a monthly basis of the progress of the repayment of the arrears. Moreover, all the parties concerned were instructed to develop a mechanism to ensure the continued repayment of the arrears. The court also decided to invite the Cabinet of Ministers to take measures to prevent the insolvency of LyNOS. The court noted that it was common ground between the parties that the arrears could be repaid in kind.
27. On 13 February 1998 the HAC decided that the insolvency proceedings should be heard by a three-judge panel, instead of by a single judge. Prior to this, the single judge sitting in the case had been challenged by the applicant company.
28. On 20 February 1998 LyNOS wrote a letter to the First Deputy Speaker of Parliament asking for his “assistance in establishing the lawfulness” of the HAC’s rulings issued in the course of the insolvency proceedings.
29. On 21 March 1998 the First Deputy Speaker of Parliament wrote a letter to the acting President of the HAC with a request “not to tolerate any prejudice or issuance of ungrounded decisions concerning the insolvency of LyNOS”, which was claimed to be strategically important for the State. The letter also contained the following request:
“... with a view to preventing any infringements of the interests of the State and violations of the legislation of Ukraine, you are requested to take an urgent decision quashing the ruling of 13 February 1998 and terminating the proceedings concerning the insolvency of LyNOS.”
30. By a letter of 6 April 1998 the HAC’s President replied that the ruling of 13 February 1998 was in compliance with the relevant legislation and could not be reviewed under a supervisory review procedure.
31. The applicant company, in turn, requested that the HAC review the ruling of 29 January 1998 by means of a supervisory review procedure. It maintained that, while the debts of LyNOS had been confirmed by documentary evidence and had to be repaid, the court had failed to establish the final amount of the outstanding debt or to demand any effective guarantees of its redemption from the debtor.
32. On 6 April 1998 the Panel of the HAC for the Review of Judgments, Rulings and Resolutions (“the Review Panel”) quashed the HAC’s ruling of 29 January 1998 inasmuch as it concerned leaving the outstanding creditors’ claims unexamined, and remitted the case for fresh examination by a different bench. It noted that the procedures by which the debt would be repaid and the scope and methods of the debt’s repayment remained unclear.
33. On 20 April 1998 the Chairman of the Department for the Fuel and Energy Sectors of the Cabinet of Ministers of Ukraine, who was also the Chairman of the Supervisory Board of LyNOS, sent a “statement regarding the case” to the HAC, in which he noted, in particular, the following:
“The prolonged continuation of the insolvency proceedings against LyNOS is inflicting both pecuniary and non-pecuniary damage on the company and deters potential investors. ... I urge you to terminate the insolvency proceedings against LyNOS.”
34. On 22 April 1998 LyNOS complained to the President of Ukraine that the HAC’s ruling of 6 April 1998 had been unlawful and asked him to intervene with a view to terminating the insolvency proceedings.
35. On 4 May 1998 the Prime Minister informed the HAC’s President that the management board and the trade unions of LyNOS disagreed with the court’s ruling of 6 April 1998 and requested that “this issue be considered in line with the established procedure”.
36. On 18 May 1998 the State Property Fund asked the HAC to terminate the insolvency proceedings. It noted that it could not proceed with the sale of its shares in LyNOS, given the prohibition by the HAC in its ruling of 15 July 1997 on any change in the status of the company’s shares.
37. On 21 May 1998 the HAC found substantiated the requests of the creditors’ committee to speed up the final determination of the amount of outstanding arrears and to demand guarantees of their repayment from the debtors. It instructed both the creditors and the debtor to comply with their obligations under its earlier ruling of 6 April 1998 and to develop a scheme ensuring the further repayment of the arrears. The court rejected as unsubstantiated a request by the State Property Fund to terminate the insolvency proceedings so that it could conduct a non-commercial competition for the sale of the shares. It instructed the Fund to submit to it all the documents concerning the aforementioned competition and its results.
38. On 2 July 1998 the HAC considered the applicant company’s request for determination of the final amount of the debtor’s outstanding arrears owed to it. The court noted that the applicant company had originally estimated the arrears at UAH 660,000,000, but, following negotiations with the debtor, that amount had been reduced to UAH 225,355,355 in accordance with the agreement of 20 August 1997 (see paragraph 22 above). Following the partial implementation by LyNOS of that agreement in September-December 1997, which the court viewed as confirmation that LyNOS had accepted its terms, the outstanding debt was UAH 216,150,544.
39. Having regard to the critical financial situation of the debtor, as well as its strategic significance for the economy of the State, the applicant company requested that the court confirm that amount as the final total of the arrears. Furthermore, it was prepared to consider the debt satisfied in full once 90% of it had been repaid.
40. LyNOS, in turn, accepted the applicant company’s claims only in part and requested that the court establish the amount of the outstanding arrears to be paid in kind. It considered the rulings of the HAC allowing the applicant company’s claims to be unlawful, even if they had remained valid. The company also blamed the Government for its non-compliance with its contractual obligations vis-à-vis the applicant company. It maintained that the agreement of 20 August 1997 could not be considered valid, as it did not regulate essential terms such as costs, time limits and conditions placed upon the supply of the oil products.
41. The court found that the total outstanding debt of LyNOS to the applicant company was UAH 216,150,544.
42. On 7 July 1998 LyNOS complained to the President of Ukraine that the Prosecutor General and the HAC’s President had failed to bring a protest on the basis of LyNOS’s request with a view to overturning the HAC’s ruling of 6 April 1998 and, accordingly, terminating the insolvency proceedings. It was noted in the letter:
“... the absence of prosecutorial reaction to the unlawful insolvency proceedings against LyNOS ... and the absence of a clear position on the part of the President of the Higher Arbitration Court as regards this case, multiplied by the boldness, unsated ambitions and, probably, some selfish interests on the part of the creditors’ committee, ... have become an obstacle not only to the normal process of privatisation of LyNOS’s shares, but even to its normal functioning.”
43. On 30 July 1998 the HAC’s President wrote a letter to the Prime Minister (no. 01-2.1/181), in which he “informed [him] of the ongoing insolvency proceedings against LyNOS pursuant to the instructions of the President of Ukraine of 6 May and 13 July 1998”. The following was noted, inter alia, in the above letter:
“The arrears of the former Lysychansk Oil Refinery vis-à-vis [its] creditors who undertake entrepreneurial activities in Ukraine, are, first of all, the result of its improper compliance with its contractual obligations.
Having received oil owned by customers, the refinery is obliged to return finished oil products to its owners as agreed. The companies had to supply most of those oil products, [in turn], to Ukrainian agricultural enterprises.
The systematic violations by LyNOS of its contractual obligations, as well as its evasion of enforcement of the judicial decisions, have not only resulted in the arrears, but have also led to their accrual. ...
In the course of the examination of the case, the court, within its competence, took appropriate measures for settlement of the debts between LyNOS and its creditors. LyNOS concluded civil law agreements with some of the creditors governing the terms and conditions of the debts’ repayment, which are being implemented and which offers some hope that all the arrears can be settled that way. This is the expectation that the debtor itself expressed in its application to the President of Ukraine. However, despite this, the debtor is evading complying with the procedure of debt repayment agreed with [the applicant company].
Having regard to the difficult economic situation of LyNOS, [the applicant] company considerably reduced [its] claims ... - from UAH 596,055,564 to UAH 216,150,544 ....
I note for your information that the arrears of LyNOS in respect of [the applicant company] emerged in 1992-93 and are confirmed by judgments of the Higher Arbitration Court of Ukraine. The lawfulness of those judgments has been verified by the supervision instances, including by the Plenary Session of the Higher Arbitration Court, which upheld them.
However, since the commencement of the insolvency proceedings, LyNOS has not enforced the judgments despite the fact that they have the force of law. Its statement that by the conclusion of the agreements with the creditors concerning the terms of and procedures for the repayment of the arrears it was released from the necessity to comply with the judgments is unlawful.
Derzhgazprom, on the instruction of the Cabinet of Ministers of 26 July 1998 ..., investigated and fully confirmed the fact of LyNOS’s non-compliance with its contractual obligations, as a result of which the claims of [the applicant company] were found to be fully justified.
In its letter of 6 May 1995 ... this authority noted that during the second half of 1993 the leadership of the Lugansk regional authorities had grossly violated Ukrainian legislation, having ordered LyNOS to divert, free of charge, the oil products belonging to [the applicant company]. This undermines the statements of the debtor that it was not its fault that those oil products had not been delivered to their owners.
The debtor did not even use the aid provided by the Government for repayment of the arrears. In June 1993 Ukrderzhnaftogaz provided LyNOS with resources ... and approved a schedule of delivery of oil products during the period from June to September 1993 which was to remain in force until the full repayment of the debt to [the applicant company]. The [debtor] company delivered only 33,000 tons of those oil products during June and July 1993 and refused further repayment of the arrears, which exceeded this volume by several times.
The demand to terminate the proceedings contradicts the law and cannot be satisfied until the complete repayment of the arrears. ...
In the course of the examination of the case, the court exhausted all legally envisaged possibilities of saving the debtor from insolvent liquidation. The creditors have made it clear that it is not their goal to have the debtor liquidated or to get its assets into their possession. They insist on gradual repayment of the debts in compliance with the agreed schedules and, subject to that, do not object to termination of the proceedings upon the complete repayment of the arrears.
Given the complexity of the settlements between the debtor and the creditors and the lack of clarity as to the final time-frame of the repayment of the arrears, which inevitably leads to the accrual of damages due to inflation and a loss of income for the creditors, and with a view to the recovery of the debtor company, it is deemed necessary to create a taskforce to investigate the problem onsite.
In our opinion, it would be desirable to investigate and finally determine the destiny of the oil products produced by LyNOS from the oil owned by customers.”
44. On the same date, 30 July 1998, the Cabinet of Ministers created a taskforce to establish the reasons for the arrears of LyNOS vis-à-vis its foreign and domestic creditors and to study the consequences of settlement of their claims. It consisted of representatives of: the Cabinet of Ministers, the Ministry of Justice, the Ministry of the Economy, the Ministry of the Interior, the Ministry of Finance, the State Property Fund, the Main Audit Department, the Insolvency Prevention Agency, the National Agency for Reconstruction and European Integration, the State Security Service, the Prosecutor General’s Office, and LyNOS.
45. On 31 August 1998 the taskforce issued its report, which contained, inter alia, the following findings. LyNOS was the biggest oil refinery in Ukraine and was able to satisfy up to 35% of the fuel needs of the country. All the oil it had refined during 1998 belonged to Russian commercial entities, which had showed increasing interest in the company given its proximity to the Russian border. The report concluded that the company was insolvent. It noted that the final amount of its arrears vis-à-vis the applicant company, as confirmed by the HAC in its ruling of 2 July 1998, was UAH 216,150,544. The main reason for the company’s indebtedness had been the decision of the State authorities (in 1992 – according to the report in question, in 1993 – according to all the other documents in the case file) to divert the oil products produced by LyNOS from oil owned by customers for State needs.
46. The report also contained the following statement:
“The taskforce supports the proposal [apparently, advanced by LyNOS] that the Higher Arbitration Court of Ukraine must also take into account ... the State’s share of the company’s assets and the other factors which were not taken into account during the previous hearings. This concerns fulfilment of the obligations in kind, since their translation into pecuniary terms caused the amount of the arrears to be overstated.”
47. However, the taskforce considered that the amount of the outstanding debt of the company vis-à-vis the applicant company had to be verified, by means of expert reports if required. It further underlined a finding of the HAC in another case, according to which the indexation of debt to inflation had not been envisaged by the relevant legislation, and maintained that a similar line should be followed in the present case. It recommended suspending the insolvency proceedings until the “factual indebtedness of LyNOS vis-à-vis commercial enterprises was established on the basis of a documentary audit”.
48. According to the above report, the taskforce had been created at the request of the HAC’s President, such request having been expressed in a letter (no. 01-2.1/181) dated 30 July 1998, and pursuant to the above-mentioned order of the Cabinet of Ministers.
49. On 31 August 1998 the Review Panel rejected a request from LyNOS for an extension of the time-limit for challenging the HAC’s ruling of 15 July 1997 under the supervisory review procedure.
50. On 10 September 1998 the HAC’s President lifted the ban on changing the status of LyNOS’s shares which had been imposed by the HAC’s ruling of 15 July 1997. This was done at the request of LyNOS, which intended to conduct a non-commercial competition for the sale of the State’s shares in the company equal to 41.4% of its share capital. The sale was intended to help the company overcome its financial crisis and avoid insolvency.
51. On 12 September 1998 the First Deputy Prime Minister wrote a letter to the HAC’s President in which he asked him to also lift the ban on transferring the ownership of LyNOS’s shares. The letter stated:
“... the members of the taskforce created at your request by an order of the Cabinet noted that the amount of [LyNOS’s] arrears vis-à-vis its domestic creditors requires further clarification and in-depth and thorough verification.
Given the fact that LyNOS runs the biggest and the most modern oil refinery in Ukraine and having regard to its importance to the economy and security of the State, ... you are requested to consider the findings of the taskforce, to lift the ban on the sale of the company’s shares and to postpone the examination of the insolvency proceedings pending a determination of the final amount of its arrears vis-à-vis the domestic creditors.”
52. On 14 September 1998 the First Deputy Prime Minister instructed the Ministry of Finance, the Ministry of the Economy, the Ministry of the Interior, the National Agency for Reconstruction and European Integration, the State Property Fund, the State Tax Administration, Derzhnaftogazprom and the Insolvency Prevention Agency to ensure that a “thematic documentary audit of the agreements for oil refining entered into by LyNOS in 1992 and the amount of [its] arrears vis-à-vis the domestic creditors” be undertaken by 10 October 1998.
53. On 9 October 1998 the Main Audit Department informed the Cabinet that it had checked the agreements entered into by LyNOS in 1992 and found that the company had delivered oil products to State agricultural enterprises pursuant to governmental instructions. There had been no documents or information suggesting that the Government had ever paid for that. As a result, the arrears of LyNOS (then called the Refinery) had emerged vis-à-vis its customers, commercial enterprises, and as of 1 January 1993 had been equal to 640,700 tons of oil products.
54. On 26 October 1998 the HAC rejected a request by LyNOS for an expert assessment of its arrears in respect of the applicant company, noting that it had already established the final amount of those arrears. On 21 January and 26 April 1999 the Review Panel upheld that ruling.
55. On 22 June 1999 the applicant company lodged a request with the Review Panel for review of the ruling issued by the HAC’s President on 10 September 1998. It claimed that he had lacked the power to make such a ruling. The applicant company submitted that the creditors had not previously challenged the ruling because it had been issued in order to enable a non-commercial competition to be held for sale of the State’s shares, amounting to 41.4% of the share capital in the company, and the competition had been subject to a guarantee that the arrears would be repaid by the company’s new owners. Referring to the fact that such a competition had never taken place and that, according to the media, there was instead a new plan to sell over 50% of the shares (a controlling share) without any guarantee of repayment of the debts, the applicant company had sought to have the ruling of 10 September 1998 overturned and its claim secured by a ban on the sale of the State’s shares in LyNOS until the insolvency proceedings were complete.
56. On 9 July 1999 the HAC’s President wrote a letter to the First Deputy Prime Minister, in which he noted that the original claim of the applicant company in respect of LyNOS had been reduced through an agreement between the parties from UAH 596,055,564 to UAH 216,150,544, with the latter figure having been confirmed by the court. The letter stated that the creditors had agreed to a restructuring of LyNOS’s arrears for a term of five years, subject to an approved debt repayment schedule being formalised by a judicial decision and having its enforcement guaranteed. At the same time they had agreed, subject to the aforementioned conditions, to reduce the amount of the arrears payable in kind. With reference to the aforementioned points, the HAC’s President underlined that the court had exhausted all procedural possibilities for saving the debtor from insolvent liquidation. He proposed to take into account the above suggestions of the creditors for overcoming the company’s financial crisis made in the extrajudicial restructuring process, as the situation pertaining at the time had led to the accrual of the arrears due to inflation and to a loss of income for the creditors.
57. On 16 July 1999 the creditors’ committee submitted its proposals for restoring the solvency of LyNOS and preventing its insolvency to the First Deputy Prime Minister. It proposed, inter alia, to transfer into the trust of the creditors’ committee the State’s shares in LyNOS in an amount equal to the company’s arrears as a guarantee of the repayment of those arrears. The creditors’ committee drew the attention of the First Deputy Prime Minister to what it described as “unlawful pressure by the authorities on the creditors and on the court, as well as the unacceptable protraction of the search for a solution to [this] acute problem”.
58. On 15 September 1999 LyNOS asked the Speaker of Parliament “to apply to the Higher Arbitration Court with a view to termination of the insolvency proceedings”. It contended that the HAC had wrongly resumed the insolvency proceedings, having overturned its earlier ruling of 29 January 1998 on 6 April 1998. It submitted that the HAC had “chosen to allow the claims of the creditors, who seek unjust enrichment ...”.
59. On 12 November 1999 LyNOS instituted proceedings before the Kyiv City Arbitration Court seeking to have its contracts with the applicant company for oil refining entered into in 1991 and 1993, as well as the agreement of 20 August 1997 concerning the repayment of the arrears, declared formally invalid. On 24 December 1999 the HAC took the case over.
60. On 25 February 2000 LyNOS wrote a letter to the President of Ukraine in which it noted that extensive efforts were being made to overcome its financial crisis and that there was interest in it from a potential foreign investor. It considered, however, that “the position of a number of non-State creditors of the company [was] an obstacle to obtaining an effective result from the measures taken by the State authorities and to realisation of the investor’s potential”. It underlined that the applicant company was “blocking the possibility of resolving the problem in a civilised manner”. The company asked the President “to give instructions to the relevant State authorities to verify, within the legal framework, the soundness of [the applicant company’s] claims against LyNOS, the nature of their emergence and to determine the correct amount of the arrears.”
61. On 13 March 2000 the State Property Fund ordered that a tendering commission be created to further the commercial sale of the State’s shares in LyNOS (representing 67.41% of its share capital).
62. On 17 March 2000 the HAC rejected LyNOS’s claim for the invalidation of its contracts with the applicant company entered into in 1991 and 1993, as well as the agreement of 20 August 1997 concerning the repayment of the arrears.
63. On 27 March 2000 the HAC’s President wrote a letter to the President of Ukraine with the following contents:
“Pursuant to your instruction of 20 March 2000, I am informing you of the progress of the insolvency proceedings against LyNOS.
Twenty enterprises are creditors in this case, with claims for the repayment of arrears amounting to over one billion hryvnias.
In the course of the examination of the case, the court took, within its competence, certain measures to settle the debts of LyNOS owed to its creditors.
However, given the complexity of the settlements between the debtor and the creditors and with a view to the company’s recovery, I request that you create a taskforce of specialists which will investigate, within the company, the problem, including clarification of the amount of the arrears.”
64. On 12 April 2000 the State Property Fund requested that the HAC’s President lift the ban on sale of shares in LyNOS, given that the ruling of 10 September 1998 had only lifted the ban on changing the status of the shares and it remained unclear whether that also concerned their sale. On the same date the HAC’s President allowed the request.
65. On 15 April 2000 the Lugansk Regional Audit Department issued a report on the “verification of the validity of the debt obligations of LyNOS vis-à-vis [the applicant company] and the lawfulness of inflation indexation and application of penalties”, which had been undertaken pursuant to the instructions of the Main Audit Department. It established the final arrears owed by LyNOS to the applicant company in the amount of UAH 36,401,894. The report considered that the findings of the HAC concerning the outstanding debt to the applicant company had been wrong and in contradiction of the applicable legislation.
66. By a ruling of 6 June 2000 the HAC imposed a moratorium on allowing the creditors’ claims in the case and appointed an administrator of the debtor’s property (an individual person).
67. In July 2000 the State’s shares in LyNOS, amounting to 67.41% of its share capital, were sold to a Russian company.
68. On an unspecified date in 2000 LyNOS applied to the Review Panel for review of the rulings of the Poltava Arbitration Court of 3 March 1997 and of the HAC of 2 July 1998 (both rulings concerning the amount of the outstanding debts of LyNOS vis-à-vis the applicant company) on the basis of newly-discovered circumstances. It referred to the above report of the Lugansk Regional Audit Department of 15 April 2000 as the newlydiscovered circumstance warranting the review.
69. On 19 September 2000 the HAC examined the above application. Having found that the report relied on did not contain any new information that was not known at the time when the challenged rulings had been issued, the HAC ruled to “uphold the part of the [relevant] ruling regarding the final determination of the debt of LyNOS to the [applicant company]”. The court also noted that the ruling of the Poltava Arbitration Court of 3 March 1997 had determined the amount of the debt only in preliminary terms, while the amount later defined as final in the HAC’s ruling of 2 July 1998 had been based on the agreement between the parties of 20 August 1997. Furthermore, the court had secured the creditors’ claims by imposing a ban on any activities involving the debtor’s assets.
70. Later in September 2000 the HAC’s President, relying on Article 92 of the Code of Arbitration Procedure, instructed his two deputies to review the HAC’s ruling of 19 September 2000, as, according to him, “it had virtually [paralysed] the work of a company strategically important for the State, which could harm the property interests of both the creditors and the debtor, as well as undermine the fulfilment of the investor’s obligations to the State Property Fund”.
71. On 4 October 2000 the Review Panel allowed an application brought by LyNOS for the suspension of the enforcement of the HAC’s ruling of 19 September 2000 until the Panel had decided whether to undertake the supervisory review sought by the company.
72. On 26 December 2000 the Review Panel quashed the HAC’s ruling of 19 September 2000 (with the exception of two unrelated points) and remitted the case for fresh examination.
73. On the same date, the Chairman of the Board of LyNOS wrote a letter to the President of Ukraine thanking him “for [his] firmness and insistence in solving the issues of the company’s privatisation and recovery”. The letter noted that “the positive results were self-explanatory”. The company considered, in particular, that the new investor had contributed to overcoming its crisis. The letter also contained the following statements:
“As a manager, I find disturbing the actions of [the applicant company], which [is] trying to put pressure on LyNOS and the investor ..., constantly exaggerating its claims in the insolvency proceedings examined by the Higher Arbitration Court ... It will be extremely difficult for LyNOS to solve these problems without your intervention. In this connection, I ask you to support our team of employees and to instruct the Prosecutor General’s Office and the Higher Arbitration Court of Ukraine to sort the situation out and to issue lawful decisions”.
74. On 29 December 2000 the President of Ukraine forwarded the above request to the HAC’s President and to the Prosecutor General with a note as follows:
“Please sort this out and take decisions according to the legislation in force”.
75. At the request of LyNOS, on 20 June 2001 the Review Panel reviewed the HAC’s ruling of 17 March 2000 under the supervisory review procedure and upheld the ruling, having found no grounds for the invalidation of LyNOS’s contracts with the applicant company entered into in 1991 and 1993, as well as the agreement of 20 August 1997 on the repayment of arrears.
76. On 27 June 2001 the HAC, at the request of LyNOS, reviewed the rulings of the Poltava Arbitration Court of 3 March 1997 and of the HAC of 2 July 1998 concerning the amount of its outstanding debts vis-à-vis the applicant company on the basis of newly-discovered circumstances. The court considered that the agreement between the parties of 20 August 1997 (on which the earlier determination of the outstanding arrears had been based) was to be considered in law as a contract of supply. However, it had not contained all the elements required for such a contract and thus had to be declared invalid. Furthermore, the court considered that the creditors’ committee had lost its powers on 4 May 2000, the effective date of amendments to the insolvency legislation envisaging new procedures for the creation and activities of creditors’ committees.
77. By the same ruling, the HAC established the final amount of the outstanding debts of LyNOS vis-à-vis the applicant company to be UAH 97,406,920, having noted that the earlier amounts established had been of a preliminary nature.
78. The applicant company appealed against the above ruling of the HAC, contending, inter alia, that the review and reduction of the amount of the arrears contradicted the final judicial decisions in that connection, which had become res judicata.
79. On 13 July 2001 the Higher Commercial Court (the former Higher Arbitration Court, as renamed in June 2001) transferred the insolvency case to the Lugansk Regional Commercial Court (“the Lugansk Commercial Court”) for further examination in line with amendments introduced to the legislation governing arbitration proceedings in June 2001.
80. On 26 July 2001 the Higher Commercial Court returned the applicant company’s appeal against the HAC’s ruling of 27 June 2001 to it, making reference to the transfer of the case to the Lugansk Commercial Court on 13 July 2001.
81. Between March and July 2001 the applicant company introduced several applications with the HAC for access to the case files regarding the insolvency proceedings and the proceedings concerning its claims against LyNOS (then called the Refinery) lodged in 1993 and 1994. By a letter of 16 July 2001 the Higher Commercial Court informed the applicant company that the files relating to its claims brought in 1993 and 1994 had been destroyed, as the time-limit for their storage had expired. The applicant company was, however, given access to the case file concerning the insolvency proceedings. It complained to the Prosecutor General’s Office and to the President of the Supreme Court about the destruction of the case files pertaining to the 1993 and 1994 claims and of irregularities in respect of the file concerning the insolvency proceedings (lack of page numbering and inadequate numbering and inventory of contents). On 3 August 2001 the Prosecutor General’s Office informed the applicant company that it had brought the irregularities discovered in the case file with regard to the insolvency proceedings to the attention of the President of the Higher Commercial Court.
82. On 29 October 2001 the Donetsk Commercial Court of Appeal considered an appeal by the applicant company against the HAC’s ruling of 27 June 2001. As a result, it changed the total of the outstanding arrears of LyNOS vis-à-vis the applicant company to UAH 90,762,268 in debt and UAH 220,809 in compensation for delayed repayment (UAH 90,983,077 in total).
83. On 16 April 2002 the Higher Commercial Court dismissed an appeal in cassation brought by the applicant company against the above-mentioned ruling of 29 October 2001.
84. On 25 June 2002 the Lugansk Regional Commercial Court commenced the court-supervised restructuring of LyNOS.
85. On 26 December 2002 the Supreme Court, sitting as a bench of five judges, rejected the applicant company’s request for leave to appeal in cassation against the rulings of 26 December 2000 and 16 April 2002, having “failed to come to an agreement as to the presence in this case of legal grounds for the institution of cassation proceedings before the Supreme Court”.
86. On 21 November 2003 the creditors’ committee and the debtor signed a friendly settlement agreement, according to which the creditors’ claims were to be settled by exchanging them for the debtor’s assets. The applicant company, in particular, was to receive 90,983,077 shares owned by the debtor in the share capital of the Lysychansk Oil Investment Company in settlement of its claims (equal to UAH 90,983,077). Its claims would also have been considered settled had it refused to accept the aforementioned shares.
87. On 8 December 2003 the Lugansk Regional Commercial Court approved the above friendly settlement agreement, noting, inter alia, that the creditors’ committee had voted for it unanimously. It declared the court-supervised restructuring of the debtor company complete and lifted the moratorium on settling the creditors’ claims. The applicant company was not present at the hearing, although, as noted in the ruling of the Donetsk Commercial Court of Appeal of 22 April 2004 (see below), it had been duly notified of it.
88. The applicant company appealed against the above ruling, submitting, amongst other things, that it had had no opportunity to object to the friendly settlement agreement, that there had been no assessment of the value of the shares in the Lysychansk Oil Investment Company, and that it had not been established whether LyNOS had been authorised to repay its debts with the assets of the aforementioned company.
89. On 22 April and 28 September 2004 the Donetsk Commercial Court of Appeal and the Higher Commercial Court, respectively, dismissed the applicant company’s appeal and cassation appeal as unsubstantiated.
90. On 25 November 2004 the Supreme Court rejected a further request by the applicant company for leave to appeal in cassation.
91. The relevant provisions can be found in Miroshnik v. Ukraine, no. 75804/01, § 30, 27 November 2008 (independence of the judiciary), and in Seryavin and Others v. Ukraine, no. 4909/04, § 22, 10 February 2011 (protection of property).
92. The relevant provisions, as worded before the amendments of 21 June 2001 (effective since 5 July 2001), are quoted in Ukraine-Tyumen v. Ukraine, no. 22603/02, § 20, 22 November 2007.
93. Chapter XII-2 (in force since 5 July 2001) can be found in MPP Golub v. Ukraine (dec.), no. 6778/05, ECHR 2005XI.
94. Under Article 112, final judicial decisions may be reviewed on the basis of newly-discovered circumstances, where those circumstances were of significant importance for the case and could not have been known to the party concerned. According to Article 114, the examination of a request for the review of a case on the basis of newly-discovered circumstances should result in a court judgment (ruling or resolution) upholding the judgment (ruling or resolution) sought to be reviewed, modifying it or quashing it. The relevant decision may be challenged under standard procedure.
95. Under paragraph 4 of the Final and Transitional Provisions, a judgment not challenged by the time of the entry into force of the Act before the president of an arbitration court may be appealed against to the commercial court of appeal or cassation instance in compliance with the procedures envisaged by the Code of Commercial Procedure.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-95995
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: RYBKA v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Renate Jaeger
TEXT: The applicant, Mr Yevgeniy Mikhaylovich Rybka, is a Ukrainian national who was born in 1971 and lives in Kyiv. The applicant was represented by Ms L. Pankratova, a lawyer practising in Kyiv. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev, of the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 28 July 2001 the applicant, together with his wife and son, went to Sebastopol for a private visit. At around 6 p.m. that evening they went to the bus station with the applicant's sister-in-law, to catch the bus home. At the bus station three persons wearing plain clothes approached the applicant as he stood alone outside the station hall. Two of these persons took the applicant by the arms, while the third said: “Militsiya” (Міліція) and waived a paper in front of the applicant's face. The applicant could not read the paper.
The persons attempted to push the applicant into a minibus, which had no official police signs. The applicant resisted and the persons allegedly started beating him. They managed to handcuff the applicant and to push him into the minibus. Meanwhile, the applicant's sister-in-law arrived and was thrust into the same minibus.
According to the applicant, he was further beaten in the minibus.
The applicant and his sister-in-law were taken to the Nakhimovskyy District Police Station in Sebastopol. At the police station the applicant was forced to stand handcuffed against the wall for an hour. Subsequently, he was allegedly undressed and searched in the presence of his sister-in-law.
On the same day the applicant was questioned by the police, who enquired whether he belonged to a neo-Nazi organisation, taking into account his hairstyle and the symbol on the t-shirt he wore. The applicant explained that he was a journalist; that he did not belong to any type of extremist organisation and that he had come to Sebastopol for private purposes.
The applicant's wife went to the police station, where she was also questioned by the police and gave the same explanations.
At around half past ten in the evening of the same day, the police told the applicant that he had been apprehended on suspicion of being a member of the neo-Nazi organisation “S”. The applicant remained in detention.
On 29 July 2001 the applicant was taken to the Nakhimoskyy District Court of Sebastopol (the Nakhimovskyy Court). The police officers told the applicant that he would be tried for failing to comply with their lawful orders.
On the same day a judge of that court found the applicant guilty of wilful disobedience to the lawful orders of the police, an administrative offence, on 28 July 2001, and issued a reprimand against him. The court's resolution stated that it was final and was not subject to appeal. Subsequently, the applicant was released.
According to the applicant, the court proceedings were not public, as neither his wife nor his colleagues were allowed to enter the court room. The applicant was not given an opportunity to study his case file and to consult a lawyer either before or during these proceedings.
On 30 July 2001 the applicant underwent a medical examination, according to which he was found to be suffering from minor bodily injuries which could have been caused on 28 July 2001.
On 9 August 2001 the applicant complained to the prosecutors, alleging that he had been ill-treated by the police officers on 28 July 2001. In a letter of 11 September 2001 the Sebastopol Prosecutor's Office informed the applicant that on 7 August 2001 the prosecutors had adopted a decision refusing to initiate a criminal investigation against the police officers. Relying on the findings of the Nakhimovskyy Court of 29 July 2001, the prosecutors concluded that the police officers had not abused their power and that there was no indication that an offence had been committed. The applicant did not challenge the decision of 7 August 2001 before the domestic courts since, in his view, it was based on the court's resolution, which was not subject to appeal.
On 20 September 2001 the applicant lodged with the Supreme Court a request for leave to appeal in cassation against the resolution of 29 July 2001 under the new transitional cassation procedure.
On 24 October 2001 the Nakhimovskyy Court informed the applicant that his appeal in cassation would be considered by the Sebastopol Court of Appeal.
On 26 October 2001 the President of the Sebastopol Town Court of Appeal quashed the resolution of 29 July 2001 on the grounds that the Nakhimovskyy Court had failed to verify the lawfulness of the orders given by the police officers and that it had applied a sanction which had not been envisaged by the relevant law. The Court of Appeal remitted the case to the Nakhimovskyy Court for fresh consideration.
On 23 November 2001 the latter court invited the applicant to attend the hearing, scheduled for 10 December 2001. In his letter of 4 December 2001 the applicant informed the court that he would not be able to attend the hearing for health reasons.
On 15 December 2001 the applicant received a letter from the court inviting him to a new hearing, scheduled for 17 December 2001. According to the applicant, he was still undergoing medical treatment on the latter date and was therefore unable to attend that hearing.
On 27 December 2001 the Nakhimovskyy Court held a hearing in the applicant's case and delivered a resolution, the relevant parts of which read as follows:
“...On 28 July 2001 ... [Mr] Rybka wilfully disobeyed the lawful order of the police officers in the course of [an] identity check at the bus station in the town of Sebastopol.
[Mr] Rybka's guilt [is] proven by the reports of the police officers, [Messrs ...], according to which [Mr] ... presented [to Mr Rybka] a police identity card and informed [him] that [he was] being stopped by the police officers for an identity check. However, [Mr] Rybka tried to run away and resisted, thereby damaging the police officers' uniforms. The police officers made similar submissions before the court...
[Mr] Rybka failed to appear for the court hearing, [although he had been] repeatedly informed [of the date and time of the hearing]; in accordance with his earlier submissions, [he] did not plead guilty, and explained that one of the police officers had showed him a police identity card, but [he] had not been able to read it. Thereafter, he was shown to the “Gazel” minibus. Since his sister-in-law told him that [the persons apprehending him] were not police officers, he started resisting, and that was why force had been used against him.
The court considers that [Mr] Rybka's actions contain the corpus of the administrative offence envisaged by Article 185 of the [Code on Administrative Offences].
However, since the time-limit for imposing administrative sanctions, provided for in Article 38 of the [Code on Administrative Offences], has expired, the court considers that the proceedings against [Mr] Rybka must be discontinued.
Pursuant to ..., [the court]
Decided:
To discontinue the proceedings against [Mr] Rybka, Yevgeniy Mikhailovich.
The decision is final [and] is not subject to appeal.”
The applicant was not informed about the date or time of the hearing of 27 December 2001. He received a copy of the court's resolution on 15 September 2002.
Article 32 of the Code on Administrative Offences, as worded at the material time, provided that administrative detention could be imposed and applied in exceptional circumstances for certain administrative offences for a maximum period of fifteen days.
Under Article 38 an administrative sanction could be imposed within two months following the day on which an offence was committed.
Article 185 envisaged the following sanctions for wilful disobedience to the orders of a police officer: a fine in the amount of eight to fifteen times the statutory non-taxable monthly income; a 20% salary deduction over a period of one to two months (corrective works); or administrative detention for up to fifteen days, if, in view of the particular circumstances of the case and with regard to the personality of the offender, the imposition of more lenient sanctions appeared insufficient.
According to Article 285, a copy of the resolution in an administrative offence case had to be handed over or sent to the person concerned within three days following the completion of the case.
Pursuant to Article 287, a first-instance court's resolution imposing an administrative sanction was final and not open to appeal, save in cases envisaged in the law. Article 290 provided that a prosecutor could lodge an extraordinary appeal (“protest”) against the court's resolution. According to Article 294, a court resolution concerning an administrative offence could be reviewed either by the same judge who had adopted it in the first place, upon an extraordinary appeal lodged by a prosecutor, or by the president of a higher court on his or her own motion.
On 24 September 2008 the Parliament of Ukraine made changes to the Code, by which it introduced an appeal procedure in administrative offence cases. In particular, under the amended Articles 287 and 294 of the Code, the parties to administrative offence proceedings have the right to appeal against court resolutions in their cases within ten days following their delivery. Such appeals must be submitted through the court of first instance that adopted the contested resolution. That court must, within three days, refer the appeal or appeals, together with the case file, to the court of appeal, which, in its turn, has twenty days to consider the case. The cases are dealt with by a judge of the criminal chamber of the court of appeal in an open hearing. The judge has the power to reject the appeal, to quash the resolution and discontinue the proceedings or adopt a new resolution, and to change the resolution. The judge's decision is final and not subject to any further appeal.
The relevant parts of the Explanatory Report to Protocol No. 7 (ETS No. 117) prepared by the Steering Committee for Human Rights and submitted to the Committee of Ministers of the Council of Europe, which concern Article 2 of Protocol No. 2, read as follows:
“17. This article recognises the right of everyone convicted of a criminal offence by a tribunal to have his conviction or sentence reviewed by a higher tribunal. It does not require that in every case he should be entitled to have both his conviction and sentence so reviewed. Thus, for example, if the person convicted has pleaded guilty to the offence charged, the right may be restricted to a review of his sentence. As compared with the wording of the corresponding provisions of the United Nations Covenant (Article 14, paragraph 5), the word "tribunal" has been added to show clearly that this provision does not concern offences which have been tried by bodies which are not tribunals within the meaning of Article 6 of the Convention.
18. Different rules govern review by a higher tribunal in the various member States of the Council of Europe. In some countries, such review is in certain cases limited to questions of law, such as the recours en cassation. In others, there is a right to appeal against findings of facts as well as on the questions of law. The article leaves the modalities for the exercise of the right and the grounds on which it may be exercised to be determined by domestic law.
19. In some States, a person wishing to appeal to a higher tribunal must in certain cases apply for leave to appeal. The right to apply to a tribunal or an administrative authority for leave to appeal is itself to be regarded as a form of review within the meaning of this article.
20. Paragraph 2 of the article permits exceptions to this right of review by a higher tribunal:
- for offences of a minor character, as prescribed by law;
- in cases in which the person concerned has been tried in the first instance by the highest tribunal, for example by virtue of his status as a minister, judge or other holder of high office, or because of the nature of the offence;
- where the person concerned was convicted following an appeal against acquittal.
21. When deciding whether an offence is of a minor character, an important criterion is the question of whether the offence is punishable by imprisonment or not...”


ITEMID: 001-66817
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF MALINOWSKA-BIEDRZYCKA v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award
JUDGES: Nicolas Bratza
TEXT: 4. The applicant was born in 1935 and lives in Sopot, Poland
5. In October 1988 the applicant lodged with the Gdańsk District Court (Sąd Rejonowy) an application for division of the matrimonial property. Her former husband, Mr R.B., whom she divorced in 1988, was a party to those proceedings. The matrimonial property consisted, inter alia, of a house in Gdańsk.
6. The District Court held several hearings. Some of them were adjourned because of the applicant's former husband's absence. The court ordered several expert opinions.
7. The hearings scheduled for 20 September and 13 October 1993 were adjourned. The applicant failed to appear at these hearings due to the illness and subsequent death of her daughter.
8. On 22 November 1993 the court held a hearing.
9. Subsequently, hearings were held on 21 February, 31 May and 29 September 1994. The court heard witnesses and imposed a fine on a witness who failed to appear before the court.
10. In 1995 the court held six hearings at which it heard the parties and witnesses. It further decided that a new expert opinion should be obtained.
11. The inspection of the property scheduled for 5 February 1996 did not take place because the applicant's former husband had refused to let her and her lawyer enter the property in question.
12. On 4 April 1996 the court ordered another expert report and a courtexpert inspected the property. He submitted his expert opinion to the court on 23 May 1996.
13. Subsequently, both parties challenged the expert opinion.
14. The hearings scheduled for 13 August and 13 September 1996 were adjourned upon the application of the applicant's former husband. The subsequent hearings scheduled for 25 October and 29 November 1996 were also adjourned since the expert witness had failed to appear before the court.
15. The court held a hearing on 7 January 1997. It heard an expert witness and ordered that a supplementary opinion be prepared.
16. At the hearing held on 25 March 1997 the applicant's former husband requested the court to stay the proceedings.
17. On 3 June 1997 the court decided to stay the proceedings since it established that the determination of the case depended on the outcome of another set of proceedings.
18. On 9 December 1997 the applicant applied to resume the proceedings because the reason for staying had ceased to exist as the other set of proceedings had ended with the Supreme Court's judgment of 13 August 1997.
19. On 16 March 1998 the Gdańsk District Court resumed the proceedings.
20. On 19 June and 5 November 1998 the court held hearings. Subsequently, the trial court decided to hold a view of the estate and to obtain an additional expert opinion. Two views of the property scheduled for 6 and 26 January 1999 did not take place.
21. Subsequently, the court held hearings on 17 January and 3 April 2000. It heard an expert witness and ordered that two new experts' opinions be prepared.
22. It appears that the experts refused to prepare their opinions and on 24 October 2000 the court ordered another expert to prepare an additional opinion.
23. On 30 May 2001 the court held the next hearing.
24. Subsequently, hearings were held on 11 July and 17 August 2001.
25. Subsequently, hearings were held on 27 February, 26 June and 27 October 2002. The trial court decided that an expert opinion should be obtained.
26. On 15 and 29 January 2003 the court held a hearing and heard expert witnesses.
27. Subsequently, hearings were held on 12 March, 14 May, 2 July, 5 August, 18 September, 9 November and 16 December 2003. Some of the hearings were adjourned.
28. On 29 January 2004 the Gdańsk District Court held a hearing and on 1 April 2004 it gave judgment.
29. On 31 May 2004 both parties lodged appeals.
30. The proceedings are pending.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-59207
LANGUAGEISOCODE: ENG
RESPONDENT: EST
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF TAMMER v. ESTONIA
IMPORTANCE: 1
CONCLUSION: No violation of Art. 10
JUDGES: Elisabeth Palm;Gaukur Jörundsson
TEXT: 8. At the material time the applicant was a journalist and editor of the Estonian daily newspaper Postimees.
9. The applicant's complaint under Article 10 of the Convention relates to his conviction by the Estonian courts of insulting Ms Vilja Laanaru in an interview he had conducted with another journalist, Mr Ülo Russak, which was published in Postimees on 3 April 1996. The interview was entitled “Ülo Russak denies theft” and was prompted by an allegation made by Ms Laanaru that Mr Russak, who had helped her to write her memoirs, had published them without her consent. The interview had the following background.
10. Ms Laanaru is married to the Estonian politician Edgar Savisaar. In 1990, when Mr Savisaar was still married to his first wife, he became Prime Minister of Estonia. Ms Laanaru, who had already been working for him, became his assistant. She continued to work with him during the following years and in 1995, when Mr Savisaar held the post of Minister of the Interior, she was one of his counsellors.
11. Ms Laanaru had been politically active in the Centre Party (Keskerakond) led by Mr Savisaar and was an editor of the party's paper.
12. In or around 1989 Ms Laanaru gave birth to a child by Mr Savisaar. As she was unwilling to place her child in a kindergarten, the child was entrusted to her parents.
13. On 10 October 1995 Mr Savisaar was forced to resign as Minister of the Interior following the discovery of secret tape recordings of his conversations with other Estonian politicians. On the same day Ms Laanaru issued a statement in which she claimed full responsibility for the secret recordings.
14. Ms Laanaru then left her post in the Ministry of the Interior and began writing her memoirs with the help of a journalist, Mr Russak.
15. In her memoirs, as recounted to Mr Russak, Ms Laanaru recalled her experiences in politics and the government. In considering the issue of the secret tape recordings she conceded that the statement she had made on 10 October 1995 was not true. According to Mr Russak, she also reflected on her relationship with Mr Savisaar, a married man, asking herself whether she had broken up his family. She admitted that she had not been as good a mother as she had wished to be and wondered whether she had paid too high a price in sacrificing her child to her career.
16. In the course of the writing, a disagreement arose between her and Mr Russak as to the publication and authorship of the memoirs.
17. On an unspecified date Ms Laanaru brought a civil action before the Tallinn City Court (Tallinna Linnakohus) for the protection of her rights as the author of the manuscript.
18. On 29 March 1996 the City Court issued an order prohibiting Mr Russak from publishing the manuscript pending the resolution of the issue of its authorship.
19. Following the court order, Mr Russak decided to publish the material collected in a different form, namely in the form of the information Ms Laanaru had given him during their collaboration.
20. Mr Russak's account of Ms Laanaru's story began appearing in the daily newspaper Eesti Päevaleht on 1 April 1996.
21. Later the same year, Ms Laanaru published her own memoirs. In her book she stated that some of the information published in the newspaper report of Mr Russak's story was incorrect, without specifying in which respect.
22. In the newspaper interview of 3 April 1996, mentioned in paragraph 9 above, the applicant questioned Mr Russak on the issue of the publication of the memoirs and asked him, inter alia, the following question:
“By the way, don't you feel that you have made a hero out of the wrong person? A person breaking up another's marriage [abielulõhkuja], an unfit and careless mother deserting her child [rongaema]. It does not seem to be the best example for young girls.” [Note by the Registry: The translation of the Estonian words “abielulõhkuja” and “rongaema” is descriptive since no one-word equivalent exists in English.}
23. Following the above publication, Ms Laanaru instituted private prosecution proceedings against the applicant for allegedly having insulted her by referring to her as “abielulõhkuja” and “rongaema”.
24. In the proceedings before the City Court, the applicant argued that the expressions used had been intended as a question rather than a statement of his opinion and that a question mark after them had been left out by mistake in the course of the editing. He denied the intent to offend Ms Laanaru and considered the expressions used as neutral. He further claimed that Ms Laanaru's actions had justified his asking the question.
25. By a judgment of 3 April 1997, the City Court convicted the applicant under Article 130 of the Criminal Code of the offence of insulting Ms Laanaru and fined him 220 kroons, the equivalent of ten times the “daily income” rate (see paragraph 31 below). In finding against the applicant, the City Court took note of the expert opinion given by the Estonian Language Institute (Eesti Keele Instituut) and of the applicant's unwillingness to settle the case by issuing an apology. It also noted that under the relevant provision of the Criminal Code liability did not depend on whether or not the victim actually possessed the negative qualities ascribed to her by the applicant. According to the expert opinion, the words at issue constituted value judgments which expressed a strongly negative and disapproving attitude towards the phenomena to which they referred. The word “rongaema” indicated that a mother had not cared for her child, and the word “abielulõhkuja” indicated a person who had harmed or broken up someone else's marriage. Both phenomena had always been condemned in Estonian society and this was also reflected in the language. However, the words were not improper in their linguistic sense.
26. The applicant lodged an appeal with the Tallinn Court of Appeal (Tallinna Ringkonnakohus) in which he argued, inter alia, that the first-instance court had failed to take into account the context of the whole article in which the two words appeared. He also disputed the qualification of his action as a crime on the grounds that he had lacked criminal intent and that the form used was not improper. He further stressed his right as a journalist freely to disseminate ideas, opinions and other information guaranteed by the Estonian Constitution and argued that the judgment of the first-instance court constituted a violation of his freedom of speech.
27. By a judgment of 13 May 1997Laanaru by stating that she did not raise her child and that she had destroyed Mr Savisaar's marriage, it would not have constituted an insult. The Court of Appeal pointed out that the Constitution and the Criminal Code expressly provided for the possibility of restricting freedom of speech if it infringed the reputation and rights of others. Despite the special interest of the press in public figures, the latter also had the right to have their honour and dignity protected.
28. The applicant lodged an appeal on points of law with the Supreme Court (Riigikohus) arguing, inter alia, that the two expressions did not have any synonyms in the Estonian language and he had therefore had no possibility of using other words. The use of a longer sentence omitting the words had been precluded by objective circumstances peculiar to journalism.
29. By a judgment of 26 August 1997, the Supreme Court's Criminal Division rejected the applicant's appeal and upheld the Court of Appeal's judgment. Its judgment included the following reasons:
“I. The principle of freedom of speech, including the principle of freedom of the press provided for in Article 45 § 1 of the Constitution of the Republic of Estonia ('the Constitution') and Article 10 § 1 of the European Convention on Human Rights ('the ECHR'), is an indispensable guarantee for the functioning of a democratic society and therefore one of the most essential social values.
...
According to Article 11 of the Constitution the restriction of any rights or freedoms may take place only pursuant to the Constitution; such restrictions must moreover be necessary in a democratic society and must not distort the nature of the restricted rights and freedoms. Freedom of speech, including freedom of the press, as a fundamental right may be restricted pursuant to Article 45 of the Constitution for the protection of public order, morals, the rights and freedoms of other persons, health, honour and good name. Under Article 10 § 2 of the ECHR, freedom of speech may be restricted by law also for the protection of morals and the reputation or rights of others.
II. In Estonia a person has in principle the right to protect his or her honour as one aspect of human dignity by bringing either civil or criminal proceedings.
According to section 23(1) of the Law on General Principles of the Civil Code, a person has the right to apply for a court order to put a stop to the besmirching of his or her honour, the right to demand rebuttal of the impugned material provided that the person defaming him or her fails to prove the truthfulness of the material and also the right to demand compensation for pecuniary or non-pecuniary damage caused by the attack on his or her honour.
Thus a person can seek protection through a civil procedure only if the person feels that his or her honour has been sullied with a statement of fact, as only a fact can be proved to be true. However, if a person feels that his or her honour has been besmirched by a value judgment, it is impossible to prove that allegation in a legal sense. In its Lingens v. Austria (1986) and Thorgeir Thorgeirson v. Iceland (1992) judgments, the European Court of Human Rights has also taken the view that a clear distinction must be made between facts and value judgments. Since the truth of a value judgment cannot be proved, the European Court of Human Rights has found that if a person offended by a journalist through a value judgment goes to a national court in order to prove the value judgment, this constitutes a violation of the freedom of speech provided for in Article 10 of the ECHR. Therefore, a person in Estonia has in fact no possibility of protecting his or her honour through civil-law remedies if he or she has been defamed by means of a value judgment. It follows that in [such] cases ... a person can only resort to criminal-law remedies for protecting his or her honour – by initiating a private prosecution under Article 130 of the Criminal Code. In the present case, the victim has availed herself of this sole opportunity.
III. The Criminal Division of the Supreme Court considers the judgments delivered by the Tallinn City Court and the Tallinn Court of Appeal on 3 April 1997 and 13 May 1997 respectively to be lawful and not subject to annulment.
In response to the arguments put forward in the appeal, the Criminal Division of the Supreme Court considers it necessary to note the following.
The appellant's statement that the words 'rongaema' and 'abielulõhkuja' could not be offensive to V. Laanaru since the sentence in the article which contained these words did not include the name of V. Laanaru, meaning that the words have not been used against anyone personally, is groundless and fabricated. Both the City Court and the Court of Appeal have correctly concluded that the expressions 'rongaema' and 'abielulõhkuja' have been used by [the applicant] to characterise the victim V. Laanaru (Savisaar). The Criminal Division of the Supreme Court wishes to add that in the formulation of his next argument – that it is legitimate to use the impugned expressions towards public figures – the appellant has considered V. Laanaru to be a public figure, thereby in fact invalidating his first argument.
Although Article 12 of the Constitution stipulates the equality of everyone before the law, the Criminal Division of the Supreme Court does not consider it necessary to question the special interest of the press towards public figures – a principle recognised in the practice of the European Court of Human Rights. However, the Criminal Division of the Supreme Court wishes to stress that in Estonia there is no legal definition of a public figure and in the practice of the European Court of Human Rights no one has been considered a public figure for the reason that he or she is a spouse, cohabitant, child or other person close to a public figure. It must be emphasised nevertheless that it cannot be concluded from the practice of the European Court of Human Rights that the special interest of the press towards public figures means that public figures cannot be offended. On the contrary, according to the criminal laws of several countries, such as Germany, the act of offending a public figure qualifies as a crime. The public has the right to expect the press to describe the life of public figures more thoroughly than the life of ordinary people, but the public has no right to expect the honour of public figures to be degraded, especially in the press and in an improper manner.
The Criminal Division does not agree with the standpoint put forward in the appeal that, since the words 'rongaema' and 'abielulõhkuja' are not vulgar or indecent, their use in referring to a person cannot be considered as degrading that person's honour and dignity in an improper manner, which is an obligatory element of the definition of the offence under Article 130 of the Criminal Code. Improper form as a legal category within the meaning of Article 130 of the Criminal Code does not only include the use of vulgar or indecent words, but also the use of negative and defamatory figurative expressions. Besides, improper form may also be non-verbal, for example a caricature. Both the City Court and the Court of Appeal have correctly taken the view, on the basis of an expert opinion, that by using the words 'rongaema' and 'abielulõhkuja' in reference to V. Laanaru in the newspaper article [the applicant] has treated the victim in public in a defamatory and thus improper manner.
The statement of [the applicant's] defence lawyer ... that the Court of Appeal had no right to prescribe which style a journalist was to use when writing a newspaper article is without foundation. Such a statement can be accepted in so far as the journalistic style does not offend or degrade human dignity. Concerning the protection of the honour and dignity of a person, the court was correct in pointing out that the idea expressed in an improper form could also be expressed in a proper form in Estonian.
The argument of the appellant that the offensive expressions 'rongaema' and 'abielulõhkuja' were used due to the absence in the Estonian language of synonymous terms and that the use of a longer sentence avoiding these words was precluded by objective circumstances peculiar to journalism, is also ill-founded. There are probably no synonyms for several vulgar and indecent expressions in Estonian. This, however, does not justify their use. Any objective circumstances inherent in the functioning of the press – such as consideration of newspaper space and information density, according to the appellant – being values whose scope is limited to a particular sphere, cannot be compared to such values as human dignity.
Under Article 65 § 4 of the Code of Criminal Procedure in Appeal and Cassation Proceedings, the Supreme Court lacks competence to establish factual circumstances. Accordingly, the Supreme Court cannot reconsider the decision which the City Court and the Court of Appeal took on the basis of an expert opinion that the use of these offensive expressions constituted a value judgment by the journalist and not a question. However, the Criminal Division of the Supreme Court finds it necessary to point out that the prevailing opinion in legal writing is that insult is in principle possible also in the form of a question. It is also important to stress that if the newspaper Postimees has violated the rights of the author [the applicant] and distorted his intent by an incompetent technical editing [by leaving out the question mark at the end of the two expressions] (letter of the chief editor of Postimees of 16 May 1996 in the file), it would have been possible for [the applicant] or the newspaper to remedy the damage in an out-of-court settlement by simply publishing an apology as the victim had expressed readiness to reach such a settlement. However, neither [the applicant] nor the newspaper Postimees was willing to acknowledge in public that they had made a mistake and this constituted further evidence of direct intent to insult.”
30. The relevant provisions of the Estonian Constitution read as follows:
“Everyone has the right to freely disseminate ideas, opinions, beliefs and other information by word, print, picture or other means. This right may be restricted by law to protect public order, morals, and the rights and freedoms, health, honour and good name of others.”
“Rights and freedoms may be restricted only in accordance with the Constitution. Such restrictions must be necessary in a democratic society and shall not distort the nature of the rights and freedoms restricted.”
31. The relevant provisions of the Criminal Code read as follows:
“The degradation of another person's honour and dignity in an improper form shall be punished with a fine or detention.”
“1. A fine is a penalty which the court can impose up to a limit of nine hundred times a person's daily income. The 'daily income' rate is calculated on the basis of the average daily wage of the defendant following deduction of taxes and taking into account his or her family and financial status.”
NON_VIOLATED_ARTICLES: 10


ITEMID: 001-102675
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF ALI v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;No violation of P1-2
JUDGES: David Thór Björgvinsson;Ján Šikuta;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
TEXT: 5. The applicant was born in 1987 and lives in Milton Keynes.
6. The applicant attended The Lord Grey, a maintained secondary (foundation) school (“the school”) (see paragraph 23 below). On 8 March 2001 a fire was discovered in a waste paper basket in a classroom. The fire brigade took the view that the fire had been started deliberately and the police were informed. The applicant and two other pupils were identified as being in the vicinity of the classroom at the time the fire was started. The Deputy Head advised the three boys that they should not return to the school until the police investigation was completed. Contrary to the statutory procedure for school exclusions set out in sections 64 – 68 of the School Standards and Framework Act 1998 (“the 1998 Act”) and the Department for Education and Skills Circular 10/99 (“the DfES circular”), no time limit was placed on the applicant's exclusion (see paragraphs 22 – 24 below).
7. On 21 March 2001 the Head Teacher wrote to the applicant's parents to tell them that he remained excluded from school until 5 April 2001. She offered to provide extra work for the applicant and stated that if his parents so wished, they could write to the Chairman of Governors to discuss the matter with them. This letter did not comply with the 1998 Act and the DfES circular as it failed to advise the applicant's parents that they had a right of appeal to the Governors of the School. Moreover, the Governors also failed in their duty to hold a hearing to confirm the exclusion or re-instate the applicant as required under the 1998 Act.
8. On 25 April 2001 the Deputy Head Teacher wrote to the applicant's parents to exclude him further until 15 May 2001. The letter was drafted in similar terms to that of 21 March 2001, and for the same reasons it failed to comply with the statutory requirements in the 1998 Act and the DfES circular.
9. During the period of exclusion, the school had been sending the applicant revision-based, self-assessing work in mathematics, English and science. This continued until 14 May 2001, the date of the applicant's final Standard Assessment Tests (“SATs”). He was permitted to attend school from 8 to 14 May 2001 in order to sit these examinations.
10. On 8 May 2001 the Personnel and Resourcing Committee of the Governing Body of the school met and were informed that the three pupils suspected of involvement in the fire had been excluded. Contrary to the requirements of the 1998 Act, the Governing Body did not convene a Governor's Disciplinary Committee or consider either the exclusion of the applicant or whether he should be reinstated.
11. The applicant was charged with the offence of arson against the school and he entered a not-guilty plea. On 25 May 2001 the Deputy Head Teacher wrote again to the applicant's parents. She indicated that as some of the witnesses in the case were students at the school, the applicant and the other two boys could not be permitted to return until the proceedings were concluded. She further indicated that she was making a referral to the access panel for alternative provision for the applicant's education. Finally, she advised the applicant's parents that he was being excluded for a further twenty days from 14 May 2001 and that the school would continue to set work as appropriate. The applicant's parents were asked to contact the school to arrange to collect the work. They did not contact the school and no work was set after 14 May 2001.
12. On 25 May 2001 a form referring the applicant to the Local Education Authority (“LEA”) for the provision of alternative education was finalised, although it was not received by the LEA until 8 June 2001.
13. Under the 1998 Act there was a standard 45-day maximum period for fixed term exclusions. That 45-day period expired on 6 June 2001.
14. On 18 June 2001 the Crown Prosecution Service notified the applicant's solicitors that the prosecution had been discontinued on the ground that there was insufficient evidence for there to be a realistic prospect of conviction. The following day the applicant attended court and the proceedings were formally ended. He then went to the school to meet with the Head Teacher, who advised him that she would act to arrange his re-entry as soon as she received written confirmation of the cessation of criminal proceedings. She received a fax to this effect from the court on 22 June 2001 and official notification from the police on 3 July 2001. On 3 July 2001 she wrote to the applicant's parents, inviting them to attend a meeting on 13 July 2001 to facilitate his re-integration. The invitation was extended again on 4 July 2001.
15. The LEA's access panel met on 19 June 2001, unaware that proceedings against the applicant had been discontinued. The panel recommended that the applicant should be provided with tuition by the Pupil Referral Unit (“PRU”) until a decision was taken on his future at the school. The PRU offers part-time education to children who are out of school, generally because they have been excluded, but it is not required to provide the full national curriculum. On 27 June 2001 the LEA's Flexible Learning Co-ordinator wrote to the applicant's parents to inform them that the PRU would provide tuition until term ended on 20 July 2001 while the school resolved the exclusion issue. The school alleged, and the domestic courts subsequently accepted, that the Flexible Learning Co-ordinator had again contacted the applicant's parents in early July 2001 and they had declined the offer of tuition. The applicant's parents, however, deny that any offer was made at the beginning of July.
16. The applicant's parents did not attend the meeting with the Head Teacher on 13 July 2001. The reason for non-attendance was heavily contested but the judge at first instance concluded that they had chosen to stay away. One of the other two boys did attend and was admitted back to the school. However, as a consequence of their non-attendance, the Head Teacher wrote to the applicant's parents to advise them that she was removing the applicant from the school roll. The school governors and the LEA were also copied in. The applicant's name remained on the roll until the middle of October 2001 although he was not provided with any education by the school during this period.
17. In September 2001 the applicant was due to begin the first term of the first year of his GCSE studies. He did not return to the school. At the end of September 2001, the LEA's welfare service completed a notification of absence. On 5 October 2001 the LEA wrote to the Head Teacher, stating that the applicant was in Bangladesh and that a place at the school was not required for him. The judge at first instance accepted that this was wrong: the applicant had not been in Bangladesh and had been at home all along. Neither the school nor the LEA contacted the applicant again before removing his name from the roll, and the applicant and his parents were not subsequently informed of the removal.
18. In mid-October 2001 the applicant's family met with the Flexible Learning Co-ordinator. At this stage they were unsure about whether they wished the applicant to return to the school. They were advised to decide quickly, and to arrange interviews either at the school or at other schools so that he could resume his education on a full-time basis. From about the third week in October, the applicant's parents made it clear that he wished to return to the school. On 6 November 2001 the applicant's father wrote to the Head Teacher formally to request his re-instatement. On 14 November 2001 the Deputy Head Teacher replied, advising that the applicant's name had been removed from the roll, that his place had been allocated to a student on the waiting list and that the school was now oversubscribed in his year group. The applicant's father was advised to contact the LEA to find another school place. On 20 January 2002 the applicant was admitted to a new school, the Leon School.
19. The applicant issued a free-standing human rights claim against the school in the County Court, claiming, inter alia, that his right to education had been violated contrary to Article 2 of Protocol No. 1 to the Convention. The LEA was not a party to the proceedings. The case was transferred to the High Court. In rejecting the application, the judge held that the school was not the cause of the respondent's lack of suitable education between 13 July and the end of the summer term on 20 July because his family had declined the LEA's offer of tuition. The cause of the respondent's lack of schooling or education during the autumn of 2001 was more complex to ascertain but it was the LEA's responsibility to provide suitable education and there were educational facilities available to him. Thus although the decisions to exclude the respondent and to remove him from the roll were unlawful in domestic law, and could have been challenged by judicial review, they did not give rise to a liability in damages for breach of his rights under Article 2.
20. On appeal, the Court of Appeal found that the provision of self-assessing work during the first 45 days of exclusion amounted to sufficient access to education to answer the applicant's Convention claim. However, the Court of Appeal held that the respondent's right to education was denied between 7 June and 13 July, notwithstanding that the school was still offering to provide him with substitute work to do at home, a matter held to be relevant only to damages. In relation to the last phase of the respondent's exclusion, from 14 July 2001 – 20 January 2002, the Court of Appeal regarded removal of the respondent's name from the school roll as improper, although giving rise to no separate legal consequences. But the respondent's exclusion during this period was, as the judge held, unlawful and unreasonable. In para 64 of the judgment the Court of Appeal concluded:
“So characterised, the exclusion of [the respondent] from 14 July until he was finally placed in a new school amounts, in my judgment, to a further denial of his Convention right to education. It was complete and it was prolonged. It was not terminated by the deletion of [the respondent's] name from the school roll because there was no lawful ground for deletion. To the extent that it may nevertheless have been acquiesced in, the damage may be mitigated. But this is not our present concern, and it will require (if the case goes that far) a factual inquiry into a number of things including the family's state of knowledge and understanding.”
“... the bare existence of the education authority's fallback duty, together with [the respondent's] right to seek to enforce it, relieves the school either of its obligations or of the legal consequences of failing to discharge them. On the contrary, it is on the two public authorities who are the present respondents (or put more realistically, the school) that the state has chosen to devolve the material elements of the obligation which it has undertaken to provide universal secondary education. It is the head teacher and the governing body who in law bear the primary duty to educate a child who has been accepted in their school and, as a corollary, not to exclude him except as authorised by law.”
22. The school was granted leave to appeal to the House of Lords. In the course of the proceedings, the applicant did not contest the lower courts' rejection of his complaint that the period of exclusion between 9 March 2001 and 6 June 2001 had violated his rights under Article 2 of Protocol No. 1. In relation to the period of exclusion after 6 June 2001, the House of Lords unanimously held, albeit for different reasons, that there had been no violation of Article 2 of Protocol No. 1. The majority accepted that the applicant's exclusion from school was at times unlawful, but held that there would be a denial of the Convention right only if there were a systemic failure of the education system which resulted in the applicant's not having access to a minimum level of education. As regards the scope of Article 2 of Protocol No. 1, Lord Hoffman stated that:
“This does not however guarantee access to any particular educational institution the domestic system does provide: see Simpson v United Kingdom (1989) 64 DR 188. Nor is there a right to remain in any particular institution. Everyone is no doubt entitled to be educated to a minimum standard (R (Holub) v Secretary of State for the Home Department [2001] 1 WLR 1359, 1367) but the right under article 2 extends no further.”
23. The House of Lords found that in this case there was no systemic failure of the education system: the applicant's parents failed to collect work from the school; the offer of tuition from the PRU was declined; the applicant's parents failed to attend the meeting at the school on 13 July 2001; and finally, during the autumn the LEA's attempts to secure the applicant's re-admission to school were thwarted by his parents' uncertainty. Baroness Hale of Richmond, however, was concerned that the applicant had been let down badly by the school, although she also allowed the appeal because, in view of the judge's findings, it would not have been just to require the school to pay damages when the applicant's parents had refused various offers of tuition. Nevertheless she indicated that this was the paradigm of a case in which it would be just and appropriate to grant the applicant a declaration that the school had acted in a way that was incompatible with his rights under Article 2 of Protocol No.1.
24. Section 10 of the Education Act 1996 (“the 1996 Act”) places on the Secretary of State for the Home Department the general duty of promoting education for the people of England and Wales. This obligation has been largely discharged by LEAs. Pursuant to sections 13 – 18 of the 1996 Act, the LEA has a general responsibility for education and is required to secure that efficient primary and secondary education are available to meet the needs of the population of their area. Section 19(1) of the 1996 Act further provides that each LEA shall make arrangements for the provision of suitable education at school for those children of compulsory school age who, by reason of exclusion, may not otherwise receive suitable education. Moreover, the DfES circular further provides that the LEA should ensure that temporarily excluded pupils are reintegrated where possible and educated meanwhile.
25. Foundation schools were established under section 20 of the School Standards and Framework Act 1998 (“the 1998 Act”). They have wider self-governing functions than other maintained schools. Pursuant to section 15 of the 1998 Act, LEAs can only intervene in the management of a Foundation school if there has been a serious breakdown in the way the school is managed or governed, or the safety of the pupils or staff is threatened. General responsibility for the conduct of the school lies with the governing body (section 38 of the 1998 Act), while the Head Teacher is responsible for the internal organisation, management and control of the school (section 61 of the 1998 Act and Regulation 5(1) of the Education (School Government) (Terms of Reference) (England) Regulations 2000).
26. The legislative provisions concerning school exclusions are contained in sections 64 – 68 of the 1998 Act and the DfES circular. Pursuant to these sections, a Head Teacher of a maintained school may exclude a pupil for a fixed period or permanently, but the pupil may not be excluded for one or more fixed periods which amount to more than 45 days in one school year. Exclusions should be for the shortest time necessary, and should not be used for, inter alia, punishing pupils for the behaviour of parents. Where a pupil is excluded, the Head Teacher must take reasonable steps to inform relevant persons (in this case, the parents) of the period of exclusion, the reasons for the exclusion, and that he or she may make representations to the governing body. If a pupil is excluded for more than 5 days in any one term, the Head Teacher must inform the LEA and the governing body. The governing body must then consider the circumstances in which the pupil was excluded, any representations made by a relevant person, and, where practical, whether the pupil should be reinstated. The LEA must make arrangements for enabling the relevant person to appeal against any decision of the governing body not to reinstate a pupil who has been permanently excluded.