ITEMID: 001-57652
LANGUAGEISOCODE: ENG
RESPONDENT: BEL
BRANCH: CHAMBER
DATE: 1991
DOCNAME: CASE OF MOUSTAQUIM v. BELGIUM
IMPORTANCE: 2
CONCLUSION: Violation of Art. 8;No violation of Art. 14+8;Not necessary to examine Art. 3 and 7;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
JUDGES: N. Valticos;R. Pekkanen
TEXT: 9. Mr Abderrahman Moustaquim, who is a Moroccan national, was born in Casablanca on 28 September 1963. He is currently living in Liège.
He arrived in Belgium with his mother in July 1965 at the latest, in order to join his father, who had emigrated some time before and ran a butcher's shop. Until he was deported in June 1984, he lived in Belgium and had a residence permit. Three of his seven brothers and sisters were born there. One of his elder brothers already had Belgian nationality at the material time.
10. While the applicant was still a minor in criminal law, that is to say in the period up to 28 September 1981, the Liège Juvenile Court dealt with 147 charges against him, including 82 of aggravated theft, 39 of attempted aggravated theft and 5 of robbery. It made various custodial, protective and educative orders. On ten occasions between January 1980 and May 1981, for instance, it ordered Mr Moustaquim to be detained in Lantin Prison for periods not exceeding fifteen days (under section 53 of the Children's and Young Persons' Welfare Act of 8 April 1965 - see paragraph 27 below).
11. On 15 May 1981 the Liège investigating judge issued a warrant for the applicant's arrest.
12. The 147 charges mentioned above subsequently came before the Juvenile Division of the Liège Court of Appeal, which in a judgment of 30 June 1981 relinquished jurisdiction. It noted in particular: "The juvenile was already committing offences before he was 14; in this regard he already came under the jurisdiction of the Criminal Court, and during the present proceedings he has not ceased to commit offences." It accordingly remitted the case to Crown Counsel's Office for prosecution in the appropriate court (section 38 of the Act of 8 April 1965 previously cited - see paragraph 27 below).
13. On 2 December 1981 Mr Moustaquim appeared before the Liège Criminal Court charged with 26 offences that had taken place between 10 February 1980 and January 1981.
The evidence against the defendant and his six accomplices included a summary report drawn up on 14 July 1980 by the Liège gendarmerie. In this it was noted that the persons concerned "live[d] like drop-outs, only rarely returning to their own homes or to the home in which they ha[d] been placed"; of the applicant the report said:
"Moroccan subject, elder brother of the above. Regarded as one of the leaders of the gang. Currently involved in major crime. He will stop at nothing and his 'training placements' in Lantin Prison have no beneficial effect. As soon as he comes out, he starts stealing again. He leads an idle life, sleeping by day and going out at night to commit his offences; and he associates with 'reliable types'. Some of the thefts he commits are planned and consequently on a large scale. On other occasions they are despicable and even sordid. He will stop at nothing and is becoming more and more steeped in crime. He is a real danger to society."
14. On the same day (2 December 1981) the Criminal Court found Mr Moustaquim guilty on 20 of the 26 charges and sentenced him to twenty months' imprisonment, half of which sentence was suspended for five years subject to a supervision order. He was acquitted on the other charges.
15. The prosecution appealed and the Liège Court of Appeal gave judgment on 9 November 1982. It set aside the judgment of the court below and found the applicant guilty on 22 of the 26 charges. It passed prison sentences of two years (for 4 offences of aggravated theft, 12 offences of attempted aggravated theft, 1 offence of theft and 1 of handling stolen goods), one month (destroying a vehicle), two periods of eight days (on two counts of assault) and fifteen days (on a count of threatening behaviour). It acquitted him on 4 charges (indecent assault with violence on a minor girl aged over 16; criminal conspiracy; attempted theft; and criminal damage to fencing).
As none of these sentences was suspended, his immediate arrest was ordered.
16. Earlier, Mr Moustaquim had been imprisoned on ten occasions between January 1980 and May 1981 for periods not exceeding fifteen days (see paragraph 10 above).
On 15 May 1981 the Liège investigating judge had him placed under arrest until, it would seem, his appearance before the Juvenile Division of the Liège Court of Appeal on 30 June 1981 (see paragraphs 11-12 above).
Mr Moustaquim was also briefly detained on remand before his trial on 2 December 1981 at the Liège Criminal Court (see paragraphs 13-14 above).
He served part - eighteen months out of twenty-six - of the prison sentences imposed on him by the Liège Court of Appeal on 9 November 1982 (see paragraph 15 above); he was released in April 1984. Between January and August 1983 he was given three days' prison leave on three occasions.
17. On 9 September 1983 the Ministry of Justice referred the case to the Advisory Board on Aliens, which gave its opinion on 24 November 1983. It concluded that deportation would be justified in law but regarded it as "inappropriate" and gave the following reasons:
"The very large number of offences committed by Mr Moustaquim and for which he was sentenced by the Liège Court of Appeal on 9/11/1982 amounted, for the most part, to serious prejudice to public order (ordre public) justifying the proposed measure. They included 26 aggravated thefts in addition to ordinary thefts, handling stolen goods, destruction, assault and threatening behaviour. The sentences passed were: 2 years' imprisonment + 1 month + 8 days + 8 days + 15 days.
The Board excludes from the offences amounting to prejudice to public order the indecent assault with violence and threatening behaviour referred to in the account of the facts drawn up by Crown Counsel's Office (Note P. 2 - File - Document 27). Counsel for Mr Moustaquim told the Board that his client had been acquitted on this charge. The Board finds that in the same Document 27 forwarded by Crown Counsel's Office to the Aliens Office the section headed 'Nature of the charge' does not include the offence of indecent assault, whereas all the other offences referred to in the account of the facts are listed there. It is not possible to tell from the file whether it is the account of the facts or the section headed 'Nature of the charge' which is wrong.
While he was a minor in criminal law, he was placed several times in homes. The Juvenile Court relinquished jurisdiction in respect of the offences of which he was convicted in the Court of Appeal's judgment.
The Board considers, however, that the proposed measure would be inappropriate for the following reasons:
1. Mr Moustaquim's youth (he was born on 28.9.1963), both at the time of the offences and now.
2. He arrived in Belgium at the age of one, in July 1965.
3. His whole family lives in Belgium (father, mother and seven other children, four of whom were born here).
4. Mr Moustaquim is learning a trade - (as a butcher's apprentice) - and could be helped by his father, who is a butcher. The father apparently owns the butcher's shop that he runs.
5. Mr Moustaquim has already had prison leave on at least two occasions without any untoward incident occurring, and the granting of this shows some confidence in his behaviour."
18. A royal order of 28 February 1984, which was served on Mr Moustaquim on 14 March and was to take effect from the moment of his release, required him to "leave the Kingdom and not return for ten years, ... except by special leave of the Minister of Justice". It was based on the following reasons:
"...
Having regard to the fact that [Mr Moustaquim] has committed a series of 26 offences of aggravated theft, attempted aggravated theft, theft, handling stolen goods, destroying a vehicle, assault and threatening behaviour, offences which were made out and for which on 9 November 1982, in a judgment that has now become final, he was sentenced by the Liège Court of Appeal to two years' imprisonment, one month's imprisonment, 8 days' imprisonment and 100 francs, 8 days' imprisonment and 100 francs, and 15 days' imprisonment and 100 francs;
Having regard to the fact that these were only some of the 147 offences committed by Mr Moustaquim while he was still a minor in criminal law and for which he was brought before the Juvenile Court (including 5 robberies, 82 offences of aggravated theft and 39 offences of attempted aggravated theft), not counting the 15 offences of theft of jewellery, weapons and cash committed after the offences which led to the aforementioned conviction;
Having regard to the opinion of the Advisory Board on Aliens, which considers that deportation is justified in law but nonetheless inappropriate;
Having regard to the fact that despite this opinion, the Board acknowledges that the very large number of offences committed by Mr Moustaquim amount, for the most part, to serious prejudice to public order justifying deportation;
Having regard to the fact that Mr Moustaquim has committed a substantial series of offences and that he is regarded by the local gendarmerie as one of the leaders of a dangerous gang of juvenile delinquents and as being a real danger to society;
Having regard to the fact that by his personal behaviour Mr Moustaquim has, consequently, seriously prejudiced public order;
Having regard to the fact that the maintenance of public order must prevail over the social and family considerations set out by the Board;
..."
The applicant had to comply with the order within thirty days of leaving prison.
19. On 17 February 1984 Mr Moustaquim's father had written to the Queen asking her to intervene on his son's behalf. On 22 March 1984 the Aliens Office informed him that his application had been rejected and the deportation order signed.
20. Acting as the applicant's representative, Mr Moustaquim's father made two applications to the Conseil d'État on 29 April 1984 seeking, firstly, to have execution of the deportation order stayed and, secondly, to have the order itself quashed.
The Conseil d'État rejected the first application on 22 June 1984. Mr Moustaquim left Belgium some days later.
On 16 October 1985 the Conseil d'État rejected the application for judicial review of the order on the following grounds:
"...
The impugned order is founded mainly on 147 offences admitted by Moustaquim. Twenty-six of those led to convictions and heavy sentences and were regarded by the Advisory Board on Aliens as amounting, for the most part, to serious prejudice to public order justifying deportation in law.
The 15 disputed offences appear, by the very terms of the impugned decision ('not counting the 15 offences'), as a superfluous ground in relation to the undisputed offences which were put forward as justifying the deportation.
It does not follow from Moustaquim's acquittal on the conspiracy charge that the information provided by the local gendarmerie that is mentioned in the impugned decision was inaccurate to the point that it was unusable as part of the basis of the assessment that Moustaquim was a real danger to society. The ground of appeal is unfounded.
In final pleadings - which were, moreover, out of time - Moustaquim put forward five further grounds. ... The third new ground, based on 'the violation of Articles 3 and 8 (art. 3, art. 8) of the European Convention for the Protection of Human Rights, in that the disputed act was both inhuman or degrading treatment and an intolerable infringement of private and family life', is unfounded. Firstly, deportation ordered in accordance with the law cannot be equated either with a punishment or with inhuman or degrading treatment within the meaning of Article 3 (art. 3) of the Convention; and secondly, respect for private and family life as guaranteed in Article 8 (art. 8) of the Convention is not an obstacle to the taking of a measure which, in a democratic society, is necessary for public safety. The fourth new ground, based on the violation of Article 14 (art. 14) of the said Convention, is similarly unfounded, as there is no evidence to suggest that the applicant was a victim, by reason of his nationality, of discrimination prohibited by that Article (art. 14). ..."
21. After his departure from Belgium at the end of June 1984, Mr Moustaquim went not to Morocco but to Spain, where he was accommodated by friends of his parents.
On being asked to leave Spain, he settled in Stockholm, where he remained virtually without a break until 20 January 1990. He lived there - at times legally and at other times illegally - by his wits and by taking the odd undeclared job in Greek and Italian restaurants; he was put up by his employers and chance acquaintances. When he managed to save up enough money, he went to a non-Scandinavian country in order to obtain a three-month Swedish tourist visa. He also applied for a long-term residence permit, and on 10 March 1989 the Swedish embassy in Athens issued him a permit authorising him to live in Sweden until 27 August of the same year; this permit was subsequently renewed for six months.
22. In a notarially certified document of 24 April 1985 Mr Moustaquim instructed his lawyer to make a "declaration of election of nationality" under, in particular, Article 13 § 4 of the new Belgian Nationality Code (see paragraph 29 below).
The Liège Registrar of Births, Deaths and Marriages considered the declaration to be inadmissible in Liège as the applicant had not been resident there since his deportation. In response to a similar application, the Belgian embassy in Sweden said that it could not take account of unlawful residence.
23. The applicant's lawyers made an urgent application to have execution of the deportation order stayed on the ground that Mr Moustaquim's position had worsened - on 24 September 1987 a Stockholm psychiatrist had diagnosed the applicant as suffering from a depression brought about by the disruption of his family ties.
In an order dated 21 March 1988 the Liège judge responsible for hearing urgent applications refused to order the interim measure sought.
24. On 1 April 1988 one of the applicant's lawyers requested the Minister of Justice to "revoke or suspend the deportation order", but he received no reply to his letter.
25. On 14 December 1989 a royal order was issued, temporarily suspending the deportation order:
"...
Having regard to the fact that Mr Moustaquim came to Belgium at the age of two;
Having regard to the fact that all his family are lawfully resident in Belgium;
Having regard to the fact that Mr Moustaquim should be given an opportunity for rehabilitation;
On a proposal by Our Minister of Justice,
We hereby order as follows:
1. The royal deportation order made on 28 February 1984 pursuant to the Act of 15 December 1980 on the entry, residence, settlement and expulsion of aliens against Abderrahman Moustaquim, born in Casablanca on 28 September 1963, shall be suspended for a trial period of two years during which the applicant shall be authorised to reside within the Kingdom.
2. Continuation of the suspension and of the residence authorisation provided for in Article 1 shall be subject to compliance by Mr Moustaquim with the following two conditions: (a) he must personally have sufficient means of subsistence; and (b) he must not prejudice public order or national security.
3. Unless a decision is taken to the contrary, the royal deportation order of 28 February 1984 shall automatically be rescinded at the end of the two-year trial period provided for in Article 1.
..."
The Aliens Office informed the applicant's lawyer on 29 December, stating that the necessary steps had been taken to ensure that his client had no difficulty when he arrived at Brussels Airport pending completion of the administrative formalities. On 29 January 1990 the Aliens Office sent him a safe-conduct authorising Mr Moustaquim to enter Belgian territory and remain there for thirty days.
26. The applicant had already returned on 20 January, and on 6 February he reported to the municipal authorities in Liège and was registered as living there with his parents. On 13 April he received a residence permit - a certificate of entry in the Aliens Register - which was valid for one year and was renewable.
He is working in his father's butcher's shop and has enrolled at the local school for continuing education for small firms and traders.
27. The Children's and Young Persons' Welfare Act of 8 April 1965 replaced an Act of 15 May 1912; its purpose is to protect the health, morals and education of young people under the age of eighteen ("juveniles"). Under it, "offending acts" committed by juveniles can normally be dealt with only by means of custodial, protective or educative measures and not by means of criminal sanctions.
The 1965 Act contains provisions relating to "social welfare" and others relating to "protection by the courts".
Judicial protection of juveniles is provided by specialised courts: the Juvenile Court, which is a section of the tribunal de première instance (regional court of first instance) and sits as one or more single-judge courts, and the juvenile divisions of the Court of Appeal, which likewise have a single member.
Section 36 of the 1965 Act lays down the cases in which the juvenile courts may take the various measures set out in the Act in respect of juveniles. They may make an order on an application by Crown Counsel in several instances, including the case of "juveniles ... proceeded against for an act classified as an offence".
The same courts can also intervene up on a complaint by "persons having paternal authority or having custody ... of a juvenile ... who on account of his misconduct or indiscipline gives serious cause for concern".
The measures they may order are, for the most part, set out in section 37:
(a) a warning (section 37(1));
(b) placing the juvenile under the supervision of the Youth Welfare Board or of a Youth Welfare Officer (section 37(2));
(c) keeping the juvenile in his own surroundings, subject to certain conditions, such as having to attend an educational establishment, to perform educative or socially useful tasks or to comply with instructions from an educational-counselling centre or mental-health centre (section 37(2));
(d) placing the juvenile in the home of any trustworthy person or in any appropriate institution, under the supervision of the Youth Welfare Board or of a Youth Welfare Officer (section 37(3));
(e) placing the juvenile in a State reformatory (section 37(4)).
Where a juvenile over sixteen has been brought before the juvenile courts for an "act classified as an offence", they may, if they consider the measures referred to in section 37 to be "inadequate", relinquish jurisdiction and remit the case to Crown Counsel so that proceedings may be taken in the appropriate court (section 38 of the 1965 Act).
Relinquishment of jurisdiction is regarded as an exceptional measure, to be applied only as a last resort. The legislature made provision for it in order to cope with precocious or depraved juvenile delinquents.
In 1987 the Belgian juvenile courts gave 13,904 decisions; they relinquished jurisdiction in favour of the Criminal Court in 87 cases.
By section 53 of the 1965 Act, a juvenile may, "if it is materially impossible to find an individual or an institution able to accept the juvenile immediately, ... be provisionally detained in a remand prison for a period not exceeding fifteen days".
28. The Act of 15 December 1980 on the entry, residence, settlement and expulsion of aliens governs aliens' administrative status.
Even foreigners with residence permits may be deported under the Act where they have "seriously prejudiced public order or national security" (section 20, second paragraph).
Before making such a deportation order, the Minister of Justice must seek the opinion of the Advisory Board on Aliens, which consists of a judge, a barrister and a member of an aliens' welfare association.
Deportation orders are signed by the King. They are subject to judicial review by the Conseil d'État (section 69), which on an application by the person concerned may grant a stay of execution until the application for review has been heard (section 70, first paragraph). The Conseil d'État satisfies itself that the deportation appealed against is based wholly on the alien's personal behaviour; the mere fact that he has a criminal conviction does not automatically entail deportation.
29. The new Belgian Nationality Code is contained in an Act of 12 July 1984 and came into force on 1 January 1985 - that is to say after the material events. Article 13 § 4 of the Code confers the right to acquire Belgian nationality on "a child who, for at least one year before the age of six, has had his principal residence in Belgium with a person to whose authority he was legally subject".
The Code replaces, in particular, the Act of 25 March 1984, which required a private naturalisation Act, even for foreigners born in Belgium.
VIOLATED_ARTICLES: 8
NON_VIOLATED_ARTICLES: 14
8


ITEMID: 001-82748
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF TIBERNEAC v. MOLDOVA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of P1-1
JUDGES: Nicolas Bratza
TEXT: 6. The applicant who was born in 1923 and lives in Terebna.
7. In 1949 the applicant and her parents had been persecuted by the communist authorities. Their property was confiscated and they were exiled to Siberia. In 1989 they were rehabilitated.
8. On an unspecified date in 2003 the applicant brought an action against the Edineţ Department of Finances, seeking compensation for the confiscated property.
9. On 24 December 2003 the Edineţ District Court ruled in favour of the applicant and ordered the defendant to pay her 63,885 Moldovan lei (MDL) (the equivalent of 3,901 euros (EUR) at the time). The judgment was not appealed against and after fifteen days it became final and enforceable.
10. On 23 February 2004 a Bailiff received the enforcement warrant.
11. The judgment has not been enforced to date.
12. The relevant domestic law was set out in Prodan v. Moldova, no. 49806/99, § 31, ECHR 2004III (extracts).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-60521
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF BERLINSKI v. POLAND
IMPORTANCE: 3
CONCLUSION: No violation of Art. 3;Violation of Art. 6-1 and 6-3-c;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses - claim dismissed
JUDGES: Georg Ress
TEXT: 9. The first applicant, Roman Berliński, is a Polish national born in 1971. The second applicant, Słavomir Berliński, is a Polish national born in 1974. The applicants are brothers. At present they live in Poland.
10. On 4 October 1993 the applicants, who practice body-building, were attending an athletics club at a Lublin university. The club manager urged the applicants to exit, as they had been present at the club without the appropriate permission. He warned that he would call the police if they did not leave. The applicants did not agree to leave. The manager called the police, and six uniformed officers arrived soon thereafter.
11. According to the applicants' account, the officers allegedly “showed a hostile attitude” towards them and “were not interested in checking their [identity documents] but simply to force them out” of the athletics club. The policemen “immediately wanted to handcuff them and pulled their arms backwards”. The applicants state that they “resisted this treatment”. The first applicant “managed to get free for a moment”, while the second applicant was “pushed and pulled” by two police officers. He was treated with tear-gas and struck with a stick.
12. According to the Government, the applicants resisted and attacked the policemen who were trying to apprehend them. One of the officers was kicked in the face and another in the crotch.
13. The parties submit that only when one officer drew a gun from his holster did the applicants yield. They were then handcuffed.
14. The applicants were immediately put in a police vehicle.
15. The Government state that the applicants still resisted whilst being taken to the vehicle, and force again had to be used against them.
16. The applicants were taken to a police station situated 4 kilometres from the athletics club.
17. According to the applicants' account, in the police van they were put on the ground and stayed handcuffed. The van had no separate cell for the arrested. The policemen and the applicants were closed together in the rear part of the van. The applicants “had no chance but to expose their bodies to the treatment of the policemen”. They “suffered heavy blows in their heads, kidneys, backs and spines”. The policemen used their police sticks to beat them up. The first applicant lost consciousness.
18. The Government deny that any ill-treatment occurred in the van.
19. At the police station the applicants were briefly questioned. The part of the first applicant's custody interview record concerning his physical condition reads: “before [the arrest the applicant was] well, at present [he complains of] pain in the left eye, the neck, the left kidney, the jaw and the head”. The relevant part of the second applicant's custody interview record reads: “pain in the temples, the hands, the nose, the teeth, the right thumb”. In the late evening of the same day the applicants were examined by doctors. The x-ray photograph of the first applicant's cranium showed no apparent injuries to his head. On the basis of the applicants' physical examination, which disclosed no problems in their circulatory and respiratory systems, a doctor concluded that they could be regarded as fit for detention.
20. The applicants remained in custody until the afternoon of the next day, 5 October 1993, when they were brought before a district prosecutor. They were released after having been questioned by the prosecutor.
21. The first applicant was taken to a hospital where he remained for 11 days. The second applicant was taken to the same hospital, was immediately released, and later underwent out-patient treatment.
22. On 5 October 1993, when being questioned by the prosecutors, the applicants complained that they had been beaten up by the police officers in the athletics club and in the police van. The applicants said that they had doubts as to the officers' identity, and that they had asked the policemen to present documents attesting to their authority. They alleged that the officers had refused to do so and that the policemen had instead attempted to arrest them. The applicants further stated that, in the police van, which lacked a separate cell for the arrested, the officers had started to inflict heavy blows all over their bodies. They had been defenceless and had not been able to lessen the impact of the blows because of their hands being handcuffed behind their backs and themselves being pushed onto the vehicle's floor. They submitted that the officers had beaten them all the way to the police station.
23. On 15 March 1994 a district prosecutor, on suspicion that offences against the applicants' personal rights had been committed in breach of the Polish Criminal Code and the Police Act, instituted investigations relating to the applicants' complaints against the police officers. The police officers who allegedly ill-treated the applicants were regarded as witnesses, not as accused, in the proceedings.
24. The applicants were called to appear before the district prosecutor on 25 March 1994, but failed to present themselves on that date.
25. On 28 March 1994 the prosecutor examined a witness DK (policeman). On 30 March witnesses MK and MS (police officers) were examined. On 6 April witnesses MW (the applicants' acquaintance) and EP (the club manager) were questioned. On 13 April the prosecutor summoned witnesses JS and MB, and on 20 April he summoned a witness PW (all police officers).
26. The applicants were examined on 5 and 9 May 1994. During the inquiries the applicants maintained that the officers had been very hostile towards them from the very beginning, that they had not asked them to leave the athletics club, and that they had, without any reason, beaten them up. The policemen contended that they had been attacked by the applicants, and that only threatening them with a firearm had permitted their apprehension.
27. On 23 May 1994 the prosecutor heard witnesses MW, JR and JN (police officers). On 24 May 1994 he summoned witnesses AG and JP (doctors). On 26 May the prosecutor examined a witness DJ, and on 27 May he questioned a witness MH (both doctors).
28. The investigation into the conduct of the policemen was prolonged by decision of a regional prosecutor of 10 June 1994, with a view to examining further witnesses.
29. On 14 June 1994 the district prosecutor examined witnesses AW and RM (doctors).
30. On 16 June 1994 the Forensic Department of the Białystok Academy of Medicine produced an opinion as to the applicants' physical condition following the incident. The opinion was delivered at the request of the Lublin District Court in the proceedings against the applicants (also see § 44 below).
31. The forensic experts, based on the medical records collected throughout the applicants' treatment from 5 October 1993, found that immediately after the incident the first applicant had a haematoma around the left eye, a bruise of 2 x 2 cm on the back of his head, a bruise with grazed skin of 7 x 7 cm on the left side of his jaw, four band-like bruises of significant size on his chest, and that his abdomen and spine were sensitive. The second applicant had small isolated bruises on his chin and neck, bruises on a grazed upper lip, an inner wound in the mucous membrane of the upper lip, lesions of the front teeth, and an injury to the right knee and wrist.
32. The forensic experts also stated that several days after the incident the first applicant had been increasingly complaining of pain in his head, vertigo, diminished clarity of sight and hearing, and that the second applicant had been complaining about a weak right hand, diminished sensitivity of his fingers, severe headaches, vertigo, nausea, pain in the spine and a reduced ability to move. The experts noted that the subsequent examinations of the applicants had not confirmed any deviations from the normal state of their heath. The experts stated that on 8 October 1993 the first applicant should have been released from hospital but remained following an intervention by the applicants' father. The experts also stressed that the father, himself a doctor, during his visits at the hospital had been instructing the first applicant of what and how he should complain. The first applicant had been released from hospital on 15 October 1993, although after this date he underwent further out-patient treatment of his jaw, chest and spine.
33. The forensic experts concluded that the injuries sustained by the applicants might have occurred from the use of a rigid, blunt instrument, e.g. a truncheon, and that the lesions might have occurred in the circumstances alleged by them, e.g. from blows by truncheons and fists. The experts held that the damage caused by these injuries to the applicants' soft tissues did not last more than seven days, but that those injuries were serious enough to warrant application of Article 156 § 2 of the Polish Criminal Code [causing light bodily harm] against the police officers. The experts also emphasised that the applicants' grievances had contained a certain measure of simulation and exaggeration.
34. On 29 June 1994 the district prosecutor requested experts at the Wrocław Academy of Medicine to produce a medical opinion specifically in the context of the proceedings concerning the applicants' allegations against the police officers.
35. By decisions of 9 September and 15 November 1994 the regional prosecutor again prolonged the investigation.
36. The opinion of the experts at the Wrocław Academy of Medicine was produced on 6 December 1994. They found that following the arrest the first applicant had had bruises on his face and a swollen left eye, and that the second applicant had isolated bruises on the face, a grazed lip and lesions of three teeth. The experts also found that the first applicant had not been suffering from concussion. The experts stated that the injuries of the applicants could occur in the circumstances alleged by the police officers, the applicants or in other circumstances.
37. The applicants requested the district prosecutor to hear additional witnesses, namely their parents, two district prosecutors and an American basketball player who had witnessed the events of 4 October 1993. On 9 September 1994 the prosecutor dismissed the request on the ground that the applicants' parents had not witnessed the incident, that the testimonies of the prosecutors had not been relevant to the determination of the facts, and that the statements of the American basketball player had been recorded in the proceedings against the applicants. On these grounds the prosecutor considered that no examination of further witnesses was necessary.
38. On 12 December 1994 the prosecutor decided to discontinue the investigation against the policemen. The prosecutor held that there was a lack of evidence in favour of the applicants' allegations that the officers had committed an offence. On the basis of witnesses' evidence, he held that the policemen had been compelled to use force only following the applicants' refusal to leave the sports club. The prosecutor did not establish that any force had been used against the applicants in the police van. By virtue of the medical opinion of the Wrocław Academy of Medicine, the prosecutor stated that the fact of the applicants' hospitalisation for seven days did not necessarily infer that the full period of seven days had been required to complete the treatment of lesions suffered by the applicants. The prosecutor concluded that “the injuries [sustained by the applicants] could occur both in the circumstances alleged by themselves, as well as in the circumstances alleged by the police officers”. Given the principle of benefit of doubt in favour of the accused, the prosecutor decided to discontinue the case against the police officers.
39. The applicants appealed against the decision. On 16 January 1995 a regional prosecutor dismissed the appeal and finally discontinued the proceedings. The regional prosecutor found no “unequivocal evidence” of the officers' guilt. He held that the district prosecutor had properly assessed the collected material, and that he had adopted a well-motivated decision.
40. After questioning the applicants on 5 October 1993, a district prosecutor commenced investigations against them on suspicion that they had attacked the police officers, thereby obstructing them in the course of their duties. On the same day the prosecutor ordered the applicants' bail on suspicion of their having committed an offence under Article 234 of the Criminal Code in regard to the events of 4 October 1993.
41. On 6 October 1993 the applicants appealed against the bail decision, requesting the prosecuting authorities to appoint a free defence lawyer on the ground of their difficult financial situation, referring inter alia to Article 6 § 3 (c) of the Convention. The applicants received no reply to the requests.
42. In the course of the investigation the policemen, the applicants and witnesses of the events of 4 October 1993, including witnesses on the applicants' behalf, were summoned. The applicants submitted many applications in which they contended that the allegations against them should have been examined from the angle of their own complaints that the officers had beaten them up. However, by virtue of relevant provisions of domestic criminal procedure, the prosecution decided that the material contained in the case-file relating to the applicants' allegations on their maltreatment by the police officers be separated and that two parallel investigations be conducted in relation to the incident of 4 October 1993.
43. On 17 February 1994 the applicants were charged with affray, assault and battery on the police officers in the course of the execution of their duties.
44. On 7 April 1994 the Lublin District Court decided to obtain from the Forensic Department of the Białystok Academy of Medicine an opinion as to the applicants' injuries following the incident. The opinion was produced on 16 June 1994 (also see §§ 30-33 above).
45. On 17 October 1994 the Lublin District Court decided to obtain an opinion from forensic psychiatrists to establish whether the applicants had been “able to ascertain and measure their actions” to determine their criminal responsibility. The court also decided to appoint a free lawyer to represent the applicants in view of the concern over their state of mind, in accordance with Article 70 § 1 of the Code of Criminal Procedure.
46. By a letter of 18 October 1994 the applicants informed the court that they refused to undergo a psychiatric examination. They did not appear for the out-patient psychiatric examination at the Lublin Centre for Mental Health on the date fixed by the court on 10 January 1995. The court ordered compulsory appearance of the applicants on the next date fixed for out-patient psychiatric examination on 2 February 1995. The applicants were brought to the experts on the above date, but refused to be subjected to an examination. The above situation repeated itself on 8 March 1995. In view of the fact that the applicants had refused to undergo out-patient psychiatric examination three times, on 8 March 1995 the forensic psychiatrists requested the court to place the applicants at a mental hospital for a forensic-psychiatric opinion to be produced.
47. On 23 March 1995 the Lublin District Court ordered the applicants' compulsory placement at the Lublin Centre for Mental Health for a period of no longer than six weeks. The applicants and their counsel appealed against the above decision. In the appeal the applicants' representative declared that he undertook to ensure their voluntary appearance for out-patient psychiatric examination. On 3 April 1995 the Lublin Regional Court, having regard in particular to the above commitment by the applicants' defence counsel, quashed the decision of 23 March 1995.
48. On the next day fixed for the applicants' out-patient psychiatric examination on 30 May 1995, they again failed to submit to out-patient examination. On 21 June 1995 the experts repeatedly requested the court to order compulsory measures against the applicants in order to produce a forensic-psychiatric opinion.
49. On 11 July 1995 the Lublin District Court again ordered the applicants' compulsory placement at a mental hospital for a period of no more than six weeks. On the applicants' appeal from this decision, on 24 July 1995 the Lublin Regional Court upheld the decision of the District Court.
50. On 1 December 1995 the first applicant was placed at the Lublin Centre for Mental Health. Upon the experts' application requesting to prolong the first applicant's stay at the ward in view of his negative attitude obstructing the production of a proper diagnosis, on 11 January 1996, the Lublin District Court extended the term of the first applicant's examination until 23 February 1996. On his appeal against the above decision, on 22 January 1996 the Lublin Regional Court upheld the decision of the District Court. The first applicant was released from the psychiatric ward on 15 February 1996.
51. On 22 February 1996 the final opinion as to the mental condition of the first applicant was issued. The forensic psychiatrists concluded that at the moment of the incident with the police on 4 October 1993 he was able to comprehend the meaning of his acts and to control his conduct. The first applicant was not found to be of unsound mind. The experts also noted that he had been very suspicious and distrustful of the examination.
52. As the second applicant expressed his willingness to undergo out-patient psychiatric observation, he was not placed in a mental hospital. The forensic psychiatrists delivered their opinion in regard to the second applicant on 27 February 1996. According to the experts' conclusions, the second applicant was mentally sane. The experts also noted that he had been very stressed throughout the examination, often speaking with a raised voice and not noticing the requests to calm him down.
53. On 7 August 1996 the Lublin District Court found the applicants guilty under Article 234 of the Criminal Code in that they had resisted and assaulted the officers on 4 October 1993. It held that the manager of the athletics club had been entitled to demand the applicants' removal notwithstanding his motives therefor, and that the police had lawfully enforced this demand. The applicants were sentenced: the first applicant to one year and six months' imprisonment and the second applicant to one year's imprisonment. The court suspended the sentences for three years for each of the applicants.
54. On 17 December 1996 the Lublin Regional Court, upon the applicants' appeal, upheld the first-instance judgment. The Regional Court concluded that “the fact that the defendants did not comply with the request of the five police officers to leave the sports hall shows a lack, on their part, of a critical judgment of their own conduct - this was also confirmed by the forensic psychiatrists”. That decision was final. The applicants were not imprisoned as a result of the conviction.
55. Articles 15 and 16 of the Police Act entitle the police to arrest a person who obstructs the public order and to use direct coercive force “to accomplish subordination to given orders”.
A special governmental ordinance of 17 September 1990 (DZ.U.90.70.410) provides that coercive means should cause as little ailment as possible, and should be abandoned if a person conforms to orders.
Under Article 69 of the Code of Criminal Procedure, an accused may apply to a prosecutor to be appointed a free defence counsel in case of insufficiency of means. The prosecutor must refer the request to the court for a lawyer to be appointed.
Under Article 70 § 1, in the course of the trial the court may of its own motion appoint a lawyer to represent the defendant in view of the justified concern over his state of mind.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 3


ITEMID: 001-93159
LANGUAGEISOCODE: ENG
RESPONDENT: SRB
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF BODROZIC v. SERBIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 10;Remainder inadmissible;Non-pecuniary damage - award
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 5. The applicant was born in 1970 and lives in Kikinda.
6. The applicant is a journalist and member of a political party. At the time of the impugned events, he was also the editor of the local weekly newspaper, Kikindske.
7. On 3 October 2003 the applicant published an article about a certain historian, J.P., entitled ‘The Floor is Given to the Fascist’ (‘Reč ima fašista’). In his article the applicant wrote:
“J.P., a historian, who during the 1980s and 1990s... used to write kilometres of various insults and defamation concerning the opponents of Milošević and his... regime, has again come to the centre of public attention thanks to... the journalist of Novi Sad TV..., who had invited him as a guest on the show ‘Unbuttoned’. And J.P. would not have been himself (an idiot), if he had not used another opportunity to express his fascist-oriented points of view. This is how he, on a national TV channel..., stated that Baranja was under Croatian occupation and that Slovaks, Romanians and above all Hungarians in Vojvodina were colonists... According to [J.] P., there are no Croats in Vojvodina..., whereas the Hungarians are mainly Slavs... because they have ‘such nice Slavic faces’...
In these three weeks following the show, many NGOs and individuals, as well as a few political parties, uttered their opinions.... [They] requested the Radio Broadcasting Council, relying on point 6 of its recommendation which provides... that ‘all broadcasters were under the obligation to respect... the provisions restraining hate speech’, to take appropriate measures against the [national] TV...
The Minister of Culture and Media and other officials also reacted ...
The latest news indicates that the Radio Broadcasting Agency has been collecting relevant information about the show... Meanwhile, J.P. must be gloating because he has managed once again to launch his twisted attitudes into the public domain. Following the changes of 5 October, this professional ‘long spitter’ was... appointed head of the Serbian History Archive... until recently, when the Government discharged him. He was then granted the opportunity in some tabloids ... to [criticise] the existing Government and the “non-existent nations”. ‘Unbuttoned’ was just the last episode of this activist... who will undoubtedly... contaminate our environment for a long time to come.”
8. On 10 October 2003 J.P. instituted private criminal proceedings for insult against the applicant in the Kikinda Municipal Court.
9. At the hearing held on 17 November 2003, the applicant stated that “he did not wish to settle the matter with the private prosecutor [J.P.] because he was a member of the fascist movement in Serbia”. On account of this statement, on 5 January 2004 J.P. instituted new private criminal proceedings for defamation against the applicant.
10. Territorial jurisdiction in the matter was subsequently transferred to the Zrenjanin Municipal Court, which decided to join the two cases.
11. The court scheduled a hearing for 15 April 2004, the summons for which was served on the applicant along with J.P.’s second criminal bill of indictment on 11 March 2004. The applicant did not attend the hearing.
12. The court scheduled the next hearing for 23 September 2004, for which the applicant received the summons on 24 June 2004. He again failed to appear in court.
13. The applicant submits that none of those court summons were served on him properly, since they had been sent to the address of the newspaper, where he was no longer employed. However, he appears to have personally signed acknowledgments of receipt forms for both summons.
14. At the next main hearing on 15 December 2004, the applicant was escorted to court by the police. His lawyer met him in the court building and made a request to the judge for a postponement of the hearing with a view to acquainting himself with the charges at issue.
15. The presiding judge granted the applicant and his lawyer 30 minutes to prepare the applicant’s defence. After 20 minutes the applicant’s lawyer stated that they were ready for the hearing.
16. The court held the main hearing and gave judgment that same day, finding the applicant guilty of insult for the published article and of defamation for the statement given at the court hearing of 17 November 2003. The court fined the applicant 15,000 Serbian dinars (RSD, approximately 162 euros (EUR)), and ordered him to pay J.P. another RSD 20,700 (approximately EUR 225) in respect of the costs of the proceedings.
17. In its judgment the Zrenjanin Municipal Court held, inter alia, that describing someone as a “fascist” was offensive, given the historical connotations of that expression “representing tragedy and evil”. The court rejected the applicant’s argument that he was merely expressing his own political views, since forming fascist political parties or movements was illegal under domestic law. The applicant had consequently failed to respect the human dignity of J.P. If he had felt personally offended by any of J.P.’s statements made on the television programme or elsewhere, the applicant should have sought appropriate judicial relief.
18. On an appeal by the applicant, on 9 March 2005 the Zrenjanin District Court upheld the first-instance judgment. The court concluded that J.P.’s statements were a product of his expert findings as a historian. Since the word “fascism” meant the extinction of people based on their nationality and/or religion, this had clearly not been the object of J.P.’s statements. The applicant’s article had thus the sole aim of insulting J.P. by using this term and additionally calling him “an idiot”.
19. The second-instance court further found the applicant’s allegations of improper summoning and an inability to prepare his defence ill-founded, establishing that he had been duly summoned twice but had failed to appear in court. Moreover, at the hearing on 15 December 2004 the applicant and his lawyer had been given the opportunity to consult and prepare his defence, and they had stated after 20 minutes that they were ready for the hearing.
20. It appears that J.P. instituted another set of proceedings against the applicant – a civil claim for compensation for non-pecuniary damage – and that the domestic courts ordered the applicant to pay him compensation in the sum of RSD 50,000 (approximately EUR 540). However, the applicant did not include these proceedings in his complaints raised before the Court.
21. The relevant provisions of the Criminal Code of the Republic of Serbia (Krivični zakon Republike Srbije; published in the Official Gazette of the Republic of Serbia - OG RS - nos. 26/77, 28/77, 43/77, 20/79, 24/84, 39/86, 51/87, 6/89, 42/89, 21/90, 16/90, 49/92, 23/93, 67/93, 47/94, 17/95, 44/98, 10/02, 11/02, 80/02, 39/03 and 67/03) provide as follows:
“Whoever, in relation to another, asserts or disseminates a falsehood which can damage his [or her] honour or reputation shall be fined or punished by imprisonment not exceeding six months.”
“1. Whoever insults another shall be fined or punished by imprisonment not exceeding three months.
2. Whoever commits an act described in [the above] paragraph ... through the press ... or at a public meeting shall be fined or punished by imprisonment not exceeding six months.”
“1. ... [no one] ... shall ... be punished for insulting another person if he [or she] so does in a scientific, literary or artistic work, a serious critique, in the performance of his [or her] official duties, his [or her] journalistic profession, as part of a political or other social activity or in defence of a right or of a justified interest, if from the manner of his [or her] expression or other circumstances it transpires that there was no [underlying] intent to disparage.
2. In situations referred to above, ... [the defendant] ... shall not be punished for claiming or disseminating claims that another person has committed a criminal offence prosecuted ex officio, even though there is no final judgment to that effect ... , if he [or she] proves that there were reasonable grounds to believe in the veracity of ... [those claims] ...”
22. The relevant provisions of the General Criminal Code (Osnovni krivični zakon; published in the Official Gazette of the Socialist Federal Republic of Yugoslavia - OG SFRY - nos. 44/76, 36/77, 34/84, 37/84, 74/87, 57/89, 3/90, 38/90, 45/90, 54/90, the Official Gazette of the Federal Republic of Yugoslavia - OG FRY - nos. 35/92, 37/93, 24/94, 61/01 and OG RS no. 39/03) provide as follows:
“...3. If the fine cannot be collected, the court shall order a day of imprisonment for each 200 dinars of the fine, providing that the overall term of imprisonment does not exceed six months.
4. If the convicted person pays only a part of the fine [imposed], the rest shall ... be converted into imprisonment, and if the convicted person [subsequently] pays the remainder of the fine, his imprisonment shall be discontinued.”
23. The relevant provisions of the Criminal Procedure Code (Zakonik o krivičnom postupku, published in OG FRY nos. 70/01, 68/02 and 58/04) provide as follows:
“Documents which need to be served in person pursuant to the provisions of this Code shall be served directly on the addressee. If the person to be served cannot be reached at the place where the service is to be effected, the process server shall inquire when and where that person can be found and leave with one of the persons stated in Article 161 of this Code a written notice inviting the recipient to be in his flat or place of work on a specified date and hour for the purpose of receiving the document. If even after this the server of process does not find the addressee, he shall act in accordance with section 161 (1) of this Code and it shall be deemed that by such acts the document is served.”
“1. A document which does not have to be served in person pursuant to the provisions of this Code shall also be served in person, but if the addressee is not found at his flat or place of work the documents can be served on any adult member of his household who is obliged to receive it. If no members of the addressee’s household are found in the flat, the document may be served on the housekeeper or a neighbour, if they accept it. If the service is attempted at the addressee’s place of work and he cannot be found there, service can be effected on a person authorised to receive mail therein, who is obliged to receive the document, or to any other employee, if he is willing to accept the service.
2. If it is established that the recipient is absent and that the persons from paragraph 1 of this section are unable to deliver the document to him in due time, it shall be returned with a notice containing information on the recipient’s whereabouts.”
“The summons... for the main hearing shall be served on the defendant in person.”
24. Article 419 provides, inter alia, that the competent public prosecutor “may” (može) file a Request for the Protection of Legality (zahtev za zaštitu zakonitosti) against a “final judicial decision”, on behalf of or against the defendant, if the relevant substantive and/or procedural “law has been breached” (ako je povređen zakon).
25. On the basis of the above request, under Articles 420, 425 and 426, the Supreme Court may uphold the conviction at issue or reverse it. It may also quash the impugned judgment in its entirety, or in part, and order a retrial before the lower courts. If the Supreme Court finds, however, that there has been a violation of the law in favour of the defendant, it may declare this but leave the final judgment standing.
26. Under sections 199 and 200 of the Obligations Act (Zakon o obligacionim odnosima; published in OG SFRY nos. 29/78, 39/85, 45/89 and 57/89, as well as in OG FRY no. 31/93), inter alia, anyone who has suffered mental anguish as a consequence of a breach of his or her honour or reputation may, depending on its duration and intensity, sue for financial compensation before the civil courts and, in addition, request other forms of redress “which may be capable” of affording adequate non-pecuniary satisfaction.
27. Section 13 of the Civil Procedure Act 2004 (Zakon o parničnom postupku; published in OG RS no. 125/04) provides that a civil court is bound by a final decision of a criminal court in respect of whether a crime has been committed, as well as the criminal liability of the person convicted.
28. The relevant provisions concerning the Court of Serbia and Montenegro are set out in the Matijašević v. Serbia judgment (no. 23037/04, §§ 12, 13 and 16-25, 19 September 2006).
VIOLATED_ARTICLES: 10


ITEMID: 001-114240
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF REDFEARN v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of association)
JUDGES: David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 5. The applicant was born in 1948 and lives in Bradford.
6. The applicant was employed by Serco Limited (“Serco”) from 5 December 2003 to his dismissal on 30 June 2004. Serco provided transport to local authorities, including Bradford City Council.
7. The applicant, who is white British, was employed formerly as a driver’s escort and latterly as a driver. As such, he was responsible for transporting children and adults with physical and/or mental disabilities within the Bradford area. The majority of his passengers were Asian in origin. There had been no complaints about his work or his conduct at work and his supervisor, who was of Asian origin, had nominated him for the award of “first-class employee”.
8. On 26 May 2004 a local newspaper article published in Bradford and the surrounding areas identified the applicant as a candidate for the British National Party (“the BNP”) in the forthcoming local elections. On the same day, the applicant was temporarily assigned to deliver mail to local council offices.
9. At the relevant time the BNP only extended membership to white nationals. According to its constitution it was:
“wholly opposed to any form of integration between British and non-European peoples. It is therefore committed to stemming and reversing the tide of non-white immigration and to restoring, by legal changes, negotiation and consent, the overwhelmingly white makeup of the British population that existed in Britain prior to 1948.”
10. On 27 May 2004 UNISON, the public sector workers’ trade union, sent a letter to Serco stating that many of its members found the applicant’s continued employment a “significant cause for concern, bearing in mind the BNP’s overt and racist/fascist agenda.” The letter advised Serco that 70-80 percent of its customer base and 35 percent of its workforce were of Asian origin. UNISON asked that Serco take immediate action to ensure its members were not subjected to racial hatred. Another trade union, GMB, and a number of employees also made representations to Serco about the applicant’s continued employment.
11. On 15 June 2004 the applicant was elected as a local councillor for the BNP. After taking legal advice Serco summarily dismissed him on 30 June 2004. Serco cited, inter alia, potential health and safety risks as the applicant’s continued employment would give rise to considerable anxiety among passengers and their carers. It also expressed concern that the applicant’s continued employment could jeopardise its reputation and possibly lead to the loss of its contract with Bradford City Council.
12. Ordinarily, one year’s service is required before an employee can bring an action for unfair dismissal under the Employment Rights Act 1996 (“the 1996 Act”), although this qualifying period does not apply where the dismissal was on grounds of pregnancy, race, sex or religion. The applicant therefore lacked sufficient continuous service to bring an action for unfair dismissal. However, on 12 August 2004 he lodged a statutory claim of race discrimination in the Employment Tribunal pursuant to the Race Relations Act 1976 (“the 1976 Act”).
13. The applicant claimed that he had been unlawfully discriminated against as his dismissal constituted less favourable treatment on racial grounds. The racial grounds relied on were those of the passengers and employees of Serco who were of Asian origin. He further argued that since the BNP was a “whites-only” party, his dismissal also constituted indirect racial discrimination.
14. The Employment Tribunal gave judgment on 2 February 2005. It noted Serco’s concerns that the applicant’s continued employment might lead to difficulties with other employees; damage its relationship with the unions; lead to attacks on Serco’s minibuses which would jeopardise the health and safety of Serco’s staff, its vulnerable passengers, and the applicant himself; cause considerable anxiety amongst Serco’s passengers and those relatives/carers entrusting vulnerable passengers to its care; and damage its reputation so as potentially to place at risk existing contracts and future bids for work in the public sector and elsewhere.
15. The Employment Tribunal dismissed the claim of direct discrimination as it was satisfied that if any discrimination existed against the claimant it was not on racial grounds but rather on health and safety grounds. The Tribunal also dismissed the claim of indirect discrimination on the ground that the applicant’s dismissal was a proportionate means of achieving a legitimate aim, namely the maintenance of health and safety.
16. The applicant lodged an appeal with the Employment Appeal Tribunal. On 27 July 2005 his appeal was upheld on the ground that the Tribunal had erred in its construction of the phrase “on racial grounds” by failing to interpret its meaning broadly and had not indicated how it had come to the conclusion that the applicant’s dismissal was a proportionate means of achieving the aim of ensuring health and safety because, inter alia, there had been no consideration of any alternatives to dismissal.
17. On 9 September 2005 Serco was granted permission to appeal to the Court of Appeal.
18. On 25 May 2006 the Court of Appeal allowed Serco’s appeal and restored the order of the Employment Tribunal. Mummery LJ found the applicant’s submission that he had been subjected to direct race discrimination to be wrong in principle and inconsistent with the purposes of the legislation.
19. In rejecting the claim of direct discrimination, the Court of Appeal noted that:
“Mr Redfearn was treated less favourably not on the ground that he was white, but on the ground of a particular non-racial characteristic shared by him with a tiny proportion of the white population, that is membership of and standing for election for a political party like the BNP. Serco was not adopting a policy which discriminated on the basis of a dividing line of colour or race. Serco would apply the same approach to a member of a similar political party, which confined its membership to black people. The dividing line of colour or race was not made by Serco, but by the BNP which defines its own composition by colour or race. Mr Redfearn cannot credibly make a claim of direct race discrimination by Serco against him on the ground that he is white by relying on the decision of his own chosen political party to limit its membership to white people. The BNP cannot make a non-racial criterion (party membership) a racial one by the terms of its constitution limiting membership to white people. Properly analysed Mr Redfearn’s complaint is of discrimination on political grounds, which falls outside the anti-discrimination laws.”
20. In rejecting the claim of indirect discrimination, the following was noted:
“For indirect discrimination ... it is necessary to identify a ‘provision, criterion or practice’ which Serco has applied or would apply equally to persons not of the same race or colour. ... Mr Redfearn ... failed to present the tribunal with a case, which satisfied the requisite elements of a claim for indirect race discrimination and upon which the tribunal could properly make a finding of indirect race discrimination....
The employment tribunal appears to have attempted itself a version of a ‘provision, criterion or practice’ in paragraph 5.6 of its decision (see paragraph 28 above). However, it is formulated too narrowly (membership of the BNP) to be meaningful. A provision of ‘membership of the BNP’ could not be applied to a person who was not of the same colour as Mr Redfearn, because only persons of the same colour as him (white) are eligible to be members of the BNP. A more general and meaningful provision along similar lines would be one applying to membership of a political organisation like the BNP, which existed to promote views hostile to members of a different colour than those that belonged to the organisation. If such a provision were applied, however, it would not put persons of the same race as Mr Redfearn ‘at a particular disadvantage’ when compared with other persons within section 1(1A) of the 1976 Act. All such political activists would be at the same disadvantage, whatever colour they were.”
21. Lastly, with regard to the applicant’s contention that he had been subjected to less favourable treatment arising from membership of a political party contrary to his Convention rights under Articles 9, 10, 11 and 14 and that this should have been taken into account in deciding whether indirect discrimination had been justified, the Court of Appeal stated that:
“The 1998 Act does not assist Mr Redfearn in this case. He is not entitled to make a claim under it as Serco is not a public authority. Section 3 of the 1998 Act does not assist, as there is no respect in which the relevant provisions of the 1976 Act are incompatible with the Convention rights. As for justification under the 1976 Act I have already explained that it does not arise, as no case of indirect discrimination has been made out.”
22. The applicant was refused leave to appeal to the House of Lords.
23. Under section 94(1) of the Employment Rights Act 1996, an employee has the right not to be unfairly dismissed by his employer. By section 98(1), an employer must show a reason for a dismissal falling within a category set out in section 98(2), which includes “conduct” or “some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held”.
Section 98(4) deals with fairness:
“Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) –
(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and
(b) shall be determined in accordance with equity and the substantial merits of the case.”
24. However, paragraph 106 provides as follows:
“(1) Section 94 does not apply to the dismissal of an employee unless he has been continuously employed for a period of not less than one year ending with the effective date of termination.”
25. Section 108(3) of the Employment Rights Act provides a wide variety of exceptions from the one-year qualifying period, many of which derive from the United Kingdom’s implementation of European Community legislation in the field of employment. These exceptions include situations in which an employee has been dismissed on grounds of pregnancy or taking parental leave, refusing to comply with a requirement imposed in contravention of the Working Time Regulations 1998, or where the employee has made a public interest disclosure against the employer. Moreover, applicants alleging that they were dismissed on account of their race, sex or religion are also exempt from the one-year qualifying period.
26. Section 1 (1) (1) of the Race Relations Act 1976 states the following:
“A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if-
(a) on racial grounds he treats that other less favourably than he treats or would treat other persons.”
Section 1 A of the Race Relations Act 1976 states:
“ A person also discriminates against another if, in any circumstances relevant for the purposes of any provision referred to in subsection (IB), he applies to that other provision, criterion or practice which he applies or would apply equally to persons not of the same race or ethnic or national origins as that other, but
(a) which puts or would put persons of the same race or ethnic or national origins as that other at a particular disadvantage when compared with other persons;
(b) which puts that other at that disadvantage, and
(c) which he cannot show to be a proportionate means of achieving a legitimate aim.”
VIOLATED_ARTICLES: 11
VIOLATED_PARAGRAPHS: 11-1


ITEMID: 001-99807
LANGUAGEISOCODE: ENG
RESPONDENT: GRC
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF SITAROPOULOS AND OTHERS v. GREECE
IMPORTANCE: 3
CONCLUSION: Violation of P1-3;Non-pecuniary damage - finding of violation sufficient
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Flogaitis;Khanlar Hajiyev;Spyridon Flogaitis;Sverre Erik Jebens
TEXT: 6. The applicants were born in 1967, 1961 and 1958 respectively and live in Strasbourg. They are officials of the Council of Europe
7. By Presidential Decree no. 154/2007 of 18 August 2007, the Greek Parliament was dissolved and a general election was called for 16 September 2007.
8. In a fax dated 10 September 2007 to the Greek Ambassador in France, the applicants, as permanent residents in France, expressed the wish to exercise their voting rights in France in the elections to be held on 16 September 2007.
9. In his reply of 12 September 2007 the Ambassador, relying on the instructions and information provided by the Ministry of the Interior, stated as follows:
“[The Greek State] confirms its wish – expressed frequently at the institutional level – to enable Greek citizens resident abroad to vote at their place of residence. However, it is clear that this matter requires regulation by means of legislation which does not currently exist. In fact, such regulation could not be brought about by a simple administrative decision, given that special measures would be required for the setting-up of polling stations in Embassies and Consulates ... In the light of the above and despite the wish expressed by the State, your request concerning the forthcoming elections cannot be granted for objective reasons.”
10. The general election took place on 16 September 2007. The applicants, who did not return to Greece, did not exercise their right to vote.
11. The relevant provisions of the Greek Constitution read as follows:
“ ...
2. Popular sovereignty is the foundation of government.
3. All powers derive from the People and exist for the People and the Nation; they shall be exercised as specified by the Constitution.”
“ ...
3. The Members of Parliament shall be elected through direct, universal and secret ballot by those citizens who have the right to vote, as specified by law. The law cannot curtail the right to vote except in cases where the statutory minimum age has not been attained or in cases of legal incapacity or as a result of a final criminal conviction for certain offences.
4. Parliamentary elections shall be held simultaneously throughout the country. The conditions governing the exercise of the right to vote by persons living outside the country may be specified by statute.
5. The exercise of the right to vote is compulsory. Exceptions and criminal sanctions shall be specified in each case by law.”
12. Following the Constitutional revision of 2001, Article 51 § 4 was amended as follows:
“4. Parliamentary elections shall be held simultaneously throughout the country. The conditions governing the exercise of the right to vote by persons living outside the country may be specified by statute, adopted by a majority of two thirds of the total number of Members of Parliament. Concerning such persons, the principle of simultaneously holding elections does not rule out the exercise of their right to vote by postal vote or by other appropriate means, provided that the counting of votes and the announcement of the results is carried out at the same time as within the country.”
“1. The State must be attentive to the situation of emigrant Greeks and to the maintenance of their ties with the Homeland. The State shall also attend to the education and the social and professional advancement of Greeks working outside the State.
2. The law shall lay down arrangements relating to the organisation, operation and competences of the World Council of Hellenes Abroad, whose mission is to allow the full expression of Hellenism worldwide.”
13. At the time of the parliamentary elections in issue, Presidential Decree no. 96/2007, which was the electoral legislation then in force, provided as follows:
“Any Greek national aged 18 or over is entitled to vote. ...”
“The following persons are not entitled to vote:
(a) Persons who have been placed under guardianship, in accordance with the provisions of the Civil Code.
(b) Persons finally convicted of one of the offences provided for in the Criminal Code or the Military Criminal Code, for the duration of their sentence. “
“1. The right to vote in a constituency is reserved to those persons registered on the electoral roll of a municipality or local authority area within that constituency.
2. Voting is mandatory.”
14. The report on that bill placed before Parliament by the Ministers of the Interior, Justice and the Economy on 19 February 2009 indicated that the purpose of the bill was to fulfil “one of the Government’s major historical obligations, one which undeniably reinforces Greek expatriates’ ties with the homeland”. The report stated that the right to vote of Greek nationals living abroad arose out of both Article 108 and Article 51 § 4 of the Constitution. In particular, as regards Article 108, the report pointed out that it “affords Greek expatriates a ‘social right’. The provision obliges the Greek State to take all necessary measures to maintain Greek expatriates’ ties with Greece, to ensure they have access to Greek education and to make provision, as a matter of State duty, for the social and professional advancement of Greeks working outside Greece. Regulating the conditions for the exercise by Greek expatriates of their right to vote in Greek parliamentary elections will undeniably contribute to real ties being forged between Greek expatriates and their homeland”. Moving on to the constitutional provision on this specific subject, namely Article 51 § 4, the report stated that the law to which that Article referred had the status of an implementing law of the Constitution. Finally, the report considered that “in these times of globalisation, Greek expatriates must be able to have a decisive political say in the development of their own country”.
15. The Scientific Council (Επιστημονικό Συμβούλιο) of Parliament, a consultative body reporting to the Speaker of Parliament, produced a report dated 31 March 2009 on the aforementioned bill. That report noted that in the past, some legal authorities had argued that Article 51 § 4 of the Constitution imposed upon Parliament an obligation to grant expatriate Greeks the right to vote from outside Greece. However, referring to other legal authorities and the preparatory work for Article 51 § 4 of the Constitution, the Scientific Council stated that it was an option rather than a duty of the legislature to grant the right to vote from abroad. It observed, further, that the optional nature of the aforementioned provision of the Constitution had not been affected by the Constitutional revision of 2001.
16. On 7 April 2009 the bill was rejected by Parliament since it failed to gain the majority of two thirds of the total number of Members of Parliament required under Article 51 § 4 of the Constitution.
17. According to the information provided on the website of the Greek Ministry of the Interior concerning Greek nationals living abroad, elections to the European Parliament are organised as follows:
“Greek citizens who have their residence in the other 26 countries of the European Union and Greeks who happen to be in another Member State of the European Union on Election Day are entitled to participate in the election process in Greece in parallel with Greek voters throughout the Greek State. These results will be incorporated into the general voting results achieved in the Greek State overall.
...
In order to exercise their right to vote at their place of residence Greeks resident abroad should:
be registered in an electoral roll of a municipality or community in Greece;
be entitled to vote and not have been deprived of that right;
submit a statement to the local Embassy or Consulate (in the area where they intend to exercise their voting rights) that they wish to vote at their place of residence. ...;
have their residence in a Member State of the European Union on Election Day. Based on this statement they will be entered in special electoral rolls prepared by the Ministry of Interior.
...
Buildings belonging to Greek Embassies or Consulates, buildings of other Greek authorities or services, independent offices of Greek Christian Orthodox Churches and buildings or other premises belonging to Greek communities, associations or other Greek organizations may be used as polling stations (to be decided on by the Minister of Interior), which will form electoral departments. In case these buildings are inadequate to meet election needs, buildings belonging to the EU Member State may be used.
The number of electoral departments (to be decided on by the Minister of Interior), which will be established for each Embassy or Consulate depends on the number of voters stating their intention to vote in that area
...
Voting at each electoral department will take place under the supervision of a returning board which will consist of ... a Chairman and three voters from those included in the special electoral rolls. The [Chairman] will be appointed by Chamber I of the Hellenic Supreme Court. The other members of the returning board drawn from persons registered in the special electoral rolls will be appointed by the local Ambassador or Consul following a public draw of lots at the Embassy or Consulate. The date and time of such drawing of lots shall be notified by Embassies and Consulates by displaying a notice to this effect at their offices.
Judicial functionaries, court employees and attorneys at law from Greece may be appointed as [Chairmen] of the returning boards. If inadequate numbers of such persons are available to cover the needs of all electoral departments, at exception the Chamber I of the Hellenic Supreme Court may appoint the following persons ...: permanent Embassy and Consul attachés and secretaries ... of higher or tertiary level education employed in the post of Advisor (Grade A or above) serving within the area covered by the Embassy or Consulate.”
18. The relevant texts adopted by the competent bodies of the Council of Europe provide as follows:
“ ...
2. In accordance with the opinion of the European Commission for Democracy through Law (Venice Commission) adopted in December 2004, it therefore invites the member and observer states of the Organisation to reconsider all existing restrictions to electoral rights and to abolish all those that are no longer necessary and proportionate in pursuit of a legitimate aim.
3. The Assembly considers that, as a rule, priority should be given to granting effective, free and equal electoral rights to the highest possible number of citizens, without regard to their ethnic origin, health, status as members of the military or criminal record. Due regard should be given to the voting rights of citizens living abroad.
...
7. Given the importance of the right to vote in a democratic society, the member countries of the Council of Europe should enable their citizens living abroad to vote during national elections bearing in mind the complexity of different electoral systems. They should take appropriate measures to facilitate the exercise of such voting rights as much as possible, in particular by considering absentee (postal), consular or e-voting, consistent with Recommendation Rec(2004)11 of the Committee of Ministers to member states on legal, operational and technical standards for evoting. Member states should co-operate with one another for this purpose and refrain from placing unnecessary obstacles in the path of the effective exercise of the voting rights of foreign nationals residing on their territories.
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11. The Assembly therefore invites:
i. the Council of Europe member and observer states concerned to:
...
b. grant electoral rights to all their citizens (nationals), without imposing residency requirements;
c. facilitate the exercise of expatriates’ electoral rights by providing for absentee voting procedures (postal and/or consular voting) and considering the introduction of e-voting consistent with Recommendation Rec(2004)11 of the Committee of Ministers and to co-operate with one another to this end;
...”
“1. Referring to its Resolution 1459 (2005) on the abolition of restrictions on the right to vote, the Parliamentary Assembly calls upon the Committee of Ministers to:
i. appeal to member and observer states to:
a. sign and ratify the 1992 Council of Europe Convention on the Participation of Foreigners in Public Life at Local Level (ETS No. 144) and to grant active and passive electoral rights in local elections to all legal residents; and
b. reconsider existing restrictions on electoral rights of prisoners and members of the military, with a view to abolishing all those that are no longer necessary and proportionate in pursuit of a legitimate aim;
ii. invite the competent services of the Council of Europe, in particular the European Commission for Democracy through Law (Venice Commission) and its Council for Democratic Elections, to develop their activities aimed at improving the conditions for the effective exercise of election rights by groups facing special difficulties, such as expatriates, prison inmates, persons who have been convicted of a criminal offence, residents of nursing homes, soldiers or nomadic groups;
iii. review existing instruments with a view to assessing the possible need for a Council of Europe convention to improve international co-operation with a view to facilitating the exercise of electoral rights of expatriates.”
“...
3.2 Freedom of voters to express their wishes and action to combat electoral fraud
i. voting procedures must be simple;
ii. voters should always have the possibility of voting in a polling station. Other means of voting are acceptable under the following conditions:
iii. postal voting should be allowed only where the postal service is safe and reliable; the right to vote using postal votes may be confined to people who are in hospital or imprisoned or to persons with reduced mobility or to electors residing abroad; fraud and intimidation must not be possible;
iv. electronic voting should be used only if it is safe and reliable; in particular, voters should be able to obtain a confirmation of their votes and to correct them, if necessary, respecting secret suffrage; the system must be transparent;
v. very strict rules must apply to voting by proxy; the number of proxies a single voter may hold must be limited;
...”
“...
52. Although the Code of Good Practice in Electoral Matters is not a binding document, it does nonetheless set out a European standard which could influence the interpretation of treaty-based rules, in particular Article 3 of Protocol 1 (see infra 2.).
53. Guideline I.3.2 of the Code states that electronic voting should be accepted only if it is secure and reliable. In particular, electors must be able to obtain confirmation of their vote and correct it if necessary, while respecting secret suffrage. The system’s transparency must be guaranteed. Any violation of secret suffrage should be sanctioned (guideline I.4.d).
54. In paragraph 42 onwards of the explanatory report, this guideline is clarified as follows:
Although mechanical and electronic voting methods present clear advantages when several elections are taking place at the same time, certain precautions are needed to minimise the risk of fraud, for example by enabling the voter to check his or her vote immediately after casting it. In order to facilitate verification and a recount of votes in the event of an appeal, it may also be provided that a machine could print votes onto ballot papers; these would be placed in a sealed container where they cannot be viewed. All the methods used should enable the confidentiality of the ballot to be guaranteed (see explanatory report, § 42). Electronic voting methods are ‘secure’ if the system can withstand deliberate attack; they are ‘reliable’ if they can function on their own, irrespective of any shortcomings in the hardware or software (§ 43). The system’s transparency must be guaranteed, in the sense that it must be possible to check that it is functioning properly (§ 43).
55. According to guideline I.1.a., democratic elections are not possible without respect for human rights, in particular freedom of expression and of the press, freedom of circulation inside the country, freedom of assembly and freedom of association for political purposes, including the creation of political parties. Restrictions of these freedoms must be in conformity with the ECHR and, more generally, have a basis in law, be in the public interest and comply with the principle of proportionality (cf. § 60 of the explanatory report).
56. It may be concluded that, on the one hand, the institutionalisation of postal voting and e-enabled voting is, in principle, compatible with the Code of Good Practice. On the other hand, their compatibility depends primarily on adequate provision, through national legislation and legal practice, of the prescribed conditions, taking particular account of technical and social conditions.”
56. External voting rights, e.g. granting nationals living abroad the right to vote, are a relatively new phenomenon. Even in long-established democracies, citizens living in foreign countries were not given voting rights until the 1980s (e.g. Federal Republic of Germany, United Kingdom) or the 1990s (e.g., Canada, Japan). In the meantime, however, many emerging or new democracies in Europe have introduced legal provisions for external voting .... Although it is yet not common in Europe, the introduction of external voting rights might be considered, if not yet present. However, safeguards must be implemented to ensure the integrity of the vote ...
...
151. Postal voting is permitted in several established democracies in Western Europe, e.g. Germany, Ireland, Spain, Switzerland and, for voters abroad, the Netherlands, Norway, and Sweden ... It was also used, for example, in Bosnia and Herzegovina and the Kosovo in order to ensure maximum inclusiveness of the election process (CG/BUR (11) 74). However, it should be allowed only if the postal service is secure and reliable. Each individual case must be assessed as to whether fraud and manipulation are likely to occur with postal voting.
...”
19. Having carried out a comparative study of the domestic law of thirty-three Council of Europe member States based primarily on data gathered by the Venice Commission and by the Organisation for Security and Cooperation in Europe, the Court notes that the great majority of those countries have implemented procedures to allow their nationals living abroad to vote in parliamentary elections. In particular, twenty-six countries make provision, without restriction as to the persons concerned, for the right to vote from abroad (Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Estonia, Finland, France, Georgia, Germany, Hungary, Italy, Latvia, Lithuania, Luxembourg, Moldova, Poland, the Netherlands, Romania, Russia, Serbia, Slovakia, Spain, Sweden, Switzerland, Ukraine and the United Kingdom). Three member States impose certain restrictions on their nationals’ right to vote from abroad (Ireland, Denmark and the Czech Republic). Finally, four member States make no provision for their nationals living abroad to vote in parliamentary elections (Albania, Armenia, Azerbaijan and Malta).