ITEMID: 001-22540
LANGUAGEISOCODE: ENG
RESPONDENT: NOR
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: FEDERATION OF OFFSHORE WORKERS' TRADE UNIONS AND OTHERS v. NORWAY
IMPORTANCE: 1
CONCLUSION: Inadmissible
JUDGES: Georg Ress;Mark Villiger
TEXT: The first applicant, the Federation of Offshore Workers’ Trade Unions (Oljearbeidernes Fellessammenslutning - “the OFS”), was established in 1970 and is a federation of trade unions for workers of all categories in the North Sea oil and gas industry. It is represented before the Court by Mr B. Endresen, a lawyer practising in Stavanger, Norway. The second applicant, Mr Claus Idland was born in 1950 and lives in Figgjo; the third applicant, Mr Kenneth Kråkstad, was born in 1963 and lives in Tjelta. They are both Norwegian citizens. At the time of the events complained of they worked as roustabouts on oil rigs on the Norwegian Continental Shelf and were members of the OFS.
The facts of the case, as submitted by the parties, may be summarised as follows.
Between 1980, when the OFS became a nation wide federation, and 1994, when the events giving rise to their application under the Convention occurred, claims being negotiated by the organisation, including every collective wage agreement except for one in 1992, were referred to compulsory arbitration on eight occasions.
In the spring of 1994 the Confederation of Norwegian Business and Industry (Næringslivets Hovedorganisasjon - NHO) and the Norwegian Oil Industry Association (Oljeindustriens Landsforening - “the OLF”) negotiated with the OFS and the Norwegian Association of Supervisors, Technicians and other Managers (Norges Arbeidslederforbund -“the NA”) on a new wage agreement to take effect on 1 July 1994. The negotiations were conducted with three major employee federations, namely the OFS, the Norwegian Oil and Petrochemical Workers’ Union (Norsk Olje og Petrokjemikeres Fagforbund - “the NOPEF”) and the Norwegian Supervisors’ Association (Norges Arbeidslederforbund - “the NALF”), on 1, 6 and 7 June 1994. The main demand made by the OFS was a reduction in the retirement age from 67 to 60 years, with a possibility of flexible retirement between 57 and 62 years; this demand entailed a 12.5 % increase in costs. In addition a pay rise was requested. The OLF and the NOPEF agreed to a 2.5 % pay rise. The same offer was also made to the OFS, but the negotiations were broken off without any agreement being reached.
On 9 June 1994 the OFS issued a collective strike warning with respect to 106 of its members at the Gyda platform (oil rig). On 14 June 1994 the NA issued a collective strike warning for all members, initially confined to 50 members at the Gullfaks B and Oseberg C platforms. On 15 June 1994 the OLF issued a warning of a lockout of 3,600 OFS members at all fixed installations on the Norwegian continental shelf. On 24 June 1994 the OLF warned that there would be a lockout of 821 NA members included in the collective notice but not part of the initial strike group.
In accordance with the procedures laid down in the Act on Labour Disputes 1927 (lov om arbeidstvister - Law no. 1 of 5 May 1927) for disputes involving a strike or lockout, the State Mediator (Riksmeklingsmannen) made an order prohibiting any work stoppage prior to compulsory mediation and summoned the parties to mediation. Midnight on Thursday, 30 June 1994 was then fixed as the time-limit for resolving the dispute by mediation. As the mediator was unable to broker an agreement between the parties, the mediation was terminated on 30 June 1994 at 11.45 p.m. and work stopped after midnight.
The Minister of Local Government and Labour thereafter summoned the parties to a joint meeting that same night at 00.15 a.m. The parties briefed the Minister on the situation. The Minister referred to the serious consequences of a complete work stoppage on all fixed installations on the Norwegian section of the Continental Shelf, and stated that at a cabinet meeting the following day he would recommend that the Government should issue a provisional ordinance imposing compulsory arbitration of the disputes.
In support of his recommendation for the Government to adopt a provisional ordinance, the Minister stated that the industrial action announced would lead to the complete suspension of all Norwegian oil and gas production, leading to a fall in production of an estimated value of NOK 2.5 billion per week (close to EUR 0.34 billion). This would worsen Norway’s foreign trade balance by a corresponding amount. The State’s tax revenues would be reduced by an estimated NOK 1 billion per week and its direct oil revenues by NOK 800 million per week. The industrial action would have direct consequences for the State’s financial commitment for the current year and would affect the State’s financial needs both that year and the following year. The estimated impact on the balance of trade and the reduction of State revenues would be extremely harmful to the Norwegian economy. An industrial dispute of any length was likely to have very damaging consequences. Oil and gas not produced at that time would nevertheless be exploited at a later stage and that would result in an increase of production after the different oil fields had passed the maximum production level. This production increase would be spread over a number of years, until such time as production ceased. Thus the overall societal consequences of the industrial action would also depend inter alia on the evolution in price levels until the possibilities of exploitation of these resources had been exhausted. Since Norwegian natural gas was being delivered under long-term contracts, a work stoppage over a lengthy period would seriously reduce Norway’s credibility as a reliable supplier of gas. If the technical installations were to be closed down for longer periods, it could entail damage to the installations and negative consequences for safety would follow. The equipment was designed with a view to regular use over long periods. A work stoppage of any length would moreover require the lay off of other categories of employees. At the close of the negotiations the situation was deadlocked with both parties unwilling to compromise. It therefore seemed likely that the conflict would continue for some time. The recommendation concluded:
“Considering the matter as a whole, the Ministry ... has reached the conclusion that the conflict ... should be resolved without industrial action. In this assessment, great emphasis has been placed on the fact that the complete cessation of production of oil and gas would lead to a considerable loss of income for the country. The industrial conflict will therefore have great consequences for the financing of the State and Social-Security budgets. The Ministry has further emphasised the importance of not undermining Norway’s position as a dependable and reliable gas supplier.
Norway has ratified several Conventions of the International Labour Organization (ILO) which protect freedom of association (Convention nos. 87, 98 and 154). As interpreted by competent organs, the Conventions only allow intervention in the right to strike where the strike jeopardises the life, health or personal security of the entire population or parts of it. The European Social Charter, under the Council of Europe, contains in Article 6, 4 cf., Article 31, corresponding provisions which protect the right to take industrial action.
In the light of the fact that the Norwegian authorities have on several occasions imposed compulsory arbitration and prohibited strike action in labour disputes in the North Sea, the OFS has on three occasions lodged complaints against Norway with the ILO, alleging breaches of the Conventions on freedom of association. The ILO agencies have in this connection levelled criticism against the Norwegian authorities’ practice, stating that the legislative interventions in labour disputes in the oil sector are not compatible with the principles of freedom of association.
The Ministry of Local Government and Labour has appraised the problems in relation to the Conventions and the criticism expressed by the ILO bodies and balanced this against the harmful effects of the strike, and after careful consideration has concluded that it is correct and necessary to intervene in the dispute. In this context great weight has been given to the fact that the situation between the parties upon the expiry of the deadline for mediation was absolute deadlock and that there is therefore reason to believe that the dispute may be long-lasting."
Under Article 17 of the Constitution, the Government adopted with immediate effect on 1 July 1994 a provisional ordinance, according to which disputes relating to the revision of the wage-agreement in question were to be settled by the National Wages Board (Rikslønnsnemnda), the provisions of the Compulsory Arbitration Act 1952 (lov om lønnsnemnd i arbeidstvister - Act no. 7 of 19 December 1952) should apply, and work stoppage and picketing were prohibited. Work was duly resumed the same day at 2 p.m.
The Board is a permanent arbitration body composed of seven members, five of whom are appointed by the Government for a period of three years and the other two are appointed by the respective parties to the dispute. The group of five includes three members who are independent of the Government, the employers’ or employees’ organisations and two experts representing respectively employers’ and employees’ interests, who, unlike the other members, have no voting rights.
On 6 July 1994 the OFS brought an action in the Oslo City Court (byrett) demanding that the compulsory arbitration be held invalid. By judgment of 27 July 1995 the City Court found for the State, represented by the Ministry of Local Government and Labour, and ordered the OFS to pay the State’s legal costs.
The OFS appealed to the Borgarting High Court (lagmannsrett), invoking an error of law. Concurrently the applicant organisation sought to appeal directly to the Supreme Court (Høyesterett). The Appeals Selection Committee (kjæremålsutvalg) of the Supreme Court subsequently granted leave.
The OFS claimed firstly that the provisional ordinance was unlawful (ugyldig) as the ban on strikes ran counter to general principles of constitutional law. Alternatively, the OFS argued that the ban violated Norway’s international legal obligations which, in the event of a dispute, override Norwegian domestic law. The State, represented by the Ministry of Local Government and Labour, disputed these contentions.
In its judgment of 10 April 1997, the Supreme Court unanimously rejected the OFS’s appeal and ordered it to pay the State’s legal costs in the proceedings. Mr Justice Stang Lund’s opinion, to which the other Supreme Court justices subscribed, included the following reasons:
As regards the position under domestic law, it was noted that between 1953 and 1994, 50 Acts of Parliament and 33 provisional ordinances had been adopted on compulsory arbitration in labour disputes, including 8 disputes in the oil sector, and 20 royal decrees had been adopted under the legislation on compulsory arbitration. The longstanding practice of using compulsory arbitration to settle labour disputes in pursuance of major societal interests did not contravene general legal principles of constitutional law. Setting aside a statute or a provisional ordinance on the grounds that it conflicted with general principles of constitutional law could only be envisaged in the most extreme cases. Although freedom of association and the right to take strike action were generally accepted in Norway, it was also generally recognised that the right to strike was not unlimited. Since 1915 the legislation had contained provisions stating when and on what conditions strike action could be taken in labour disputes. In order to safeguard substantial societal interests, bans on strikes and compulsory arbitration had been imposed by special legislation or provisional ordinances.
On the question whether the restriction on strikes conflicted with Norway’s international law obligations, it was recalled that work stoppages were not mentioned in the ILO Convention nos. 87 and 98, nor had they been a theme for negotiation during the ILO labour conferences in 1948 and 1949. Since those conferences, the stance taken by the ILO bodies had evolved. The Committee on Freedom of Association had already expressed the view in 1952 that from the ILO Statute, the ILO conference in Philadelphia in 1944 and Convention no. 87, it was implicit that the right to strike and to impose a lockout were fundamental aspects of the right to freedom of association, which view was later accepted by the expert Committee. This evolution in the interpretation advocated by the ILO bodies led to their criticism of the use of compulsory arbitration in Norway. The Freedom of Association Committee of the ILO Governing Body and, subsequently, the Committee of Experts had in many instances, including in Norwegian cases, affirmed that the right to strike must be regarded as a part of trade union freedom of association and the right to bargain, and that it was therefore protected against interference by the authorities.
However, according to the practice of the ILO bodies, strike action could be forbidden in respect of public servants engaged in the administration of the State, if it would affect essential services thereby jeopardising the life, health or personal security of the entire population or parts of it, and the harm was clear and imminent. Harmful economic effects to society, even if deemed substantial, had not been considered a sufficient reason for intervention. Dock work, oil production, education and transport were examples of services that had been regarded as nonessential. Since 1962 the use of compulsory arbitration in Norway had been the subject of eight complaints to ILO agencies. The Freedom of Association Committee, with the support of the ILO’s Governing Body, had endorsed the petitioner’s contention that the use of compulsory arbitration did not comply with the principle of freedom of association. Three of the successful petitions had concerned compulsory arbitration in respect of the OFS. However, the court emphasised that, under the 1919 ILO Statute, the Governing Body, the Committee of Experts and the Freedom of Association Committee had no competence to determine with binding effect disputes on the interpretation of the ILO Conventions, for which competence was vested in the International Court of Justice. The court observed that Norway had never accepted that the use of compulsory arbitration required by a substantial societal interest was contrary to the ILO Convention nos. 87 and 98. In its view, the opinions held by the institutions of the ILO on the limits to State intervention in labour disputes did not have a basis in the Convention texts as negotiated and adopted.
As regards the more recent provision in Article 8 § 1 (d) of the International Covenant on Economic, Social and Cultural Rights, the court observed that Norway had found it necessary to make a reservation in the light of the use of compulsory arbitration, with possible further exceptions being made to the right to strike.
Moreover, the court noted that the Norwegian practice of compulsory arbitration had been criticised by the European Committee of Social Rights of the 1961 European Social Charter for going further than authorised by Articles 6 § 4 and 31 § 1 of the Charter. In 1995 the Committee had proposed in a draft recommendation that a provisional ordinance on compulsory arbitration of disputes in the oil sector dated 2 July 1990 be deemed incompatible with the Charter. The Governmental Committee later rejected the proposal. In these circumstances there was, in the court’s view, no clear practice establishing that the provisional ordinance in issue in the present case was contrary to the Social Charter.
The court also had regard to the European Court’s Schmidt and Dahlström v. Sweden judgment of 6 February 1976 (Series A no. 21), and noted that neither the Commission nor the Court had found an infringement of Article 11 § 1 of the Convention by virtue of the award of increments to members of non-striking unions, but not to members of striking unions, which included the applicants although they had not actually been on strike themselves.
In addition, it was noted that in interpreting Article 22 of the International Covenant on Civil and Political Rights in J.B. v. Canada (case 118/1982), the Human Rights Committee had had regard to the fact that, while the right to strike was expressly included in Article 8 § 1 (d) of the Covenant on Economic, Social and Cultural Rights, it was not mentioned in Article 22, indicating that this right fell outside its scope.
In the light of the above, the court did not find that Norway was required by international law to limit the use of compulsory arbitration in a labour dispute where such intervention was necessary in order to safeguard substantial societal interests. In any event, neither the Convention nor the International Covenant on Civil and Political Rights contained any detailed standards limiting State restrictions on the right to strike, such as those derived by the ILO bodies from the ILO Convention nos. 87 and 98 and the Philadelphia Declaration. Accordingly, it concluded that the provisional ordinance of 1 July 1994 was not at variance with Norway’s obligations under international law. Thus, it was not necessary to examine the question of any conflict between Norway’s obligations under international law and its domestic law.
The European Committee of Social Rights, formerly the Committee of Independent Experts of the Social Charter, in its 17th report (with reference to the period 1994 to 1996), observed with respect to the provisional ordinance in issue in the present case that it accepted that the implications of the industrial action would have been serious in terms of the loss of revenue. However, the Committee was not satisfied that the situation was so serious that it fell within Article 31 of the Charter, that is to say that it was necessary for the protection of the public interest. It noted that the loss of revenue would not necessarily have been of a permanent nature. Accordingly, it concluded that in this case the imposition of compulsory arbitration and the termination of the industrial action did not fall within the terms of Article 31 of the Charter (Conclusions XIV-1, Vol. 2, Norway, Article 6 paragraph 4, p. 621).
When the matter was subsequently considered by the Governmental Committee of the Social Charter, which observed:
“Several delegates thought that they were not in a position to assess the Norwegian situation since the case law of the Committee of Independent Experts on the interpretation of Article 31 of the Charter is sparse, and it is difficult for them to assess whether, in the case at hand, the action of the Government went beyond what is authorised by Article 31 of the Charter.”
The Governmental Committee decided to draw the attention of the Norwegian authorities to the fact that action by Parliament or the Government in the event of compulsory arbitration should not go beyond the limits laid down by Article 31 of the Charter (Governmental Committee Report XIV-1, paragraph 184). No warning was issued by the Governmental Committee with respect to the events in 1994.
During the proceedings before the Court, the Government supplied information according to which if the strike had lasted one month it would have reduced the value of petroleum extraction by approximately NOK 11 billion (1 % of Norway’s Gross Domestic Product) and central government revenues by NOK 8 billion (2%). The calculations did not take into account shutdown and start-up costs, the fact that it would be some time before the production level reached the pre-shutdown level and that a shutdown of any length could result in damage to installations and equipment that was designed to be in continuous operation over a longer period. Since production would normally be maintained at maximum level, recovery of lost production would only take place after peak production levels at the relevant fields had been reached. Notwithstanding the possibility of recovering lost revenues at a later stage, a halt in extraction would inevitably be accompanied by a loss in extraction value, export earnings and central government revenues for the year in which the halt occurred. The real loss in revenues would thus depend on the prices prevailing at the time of recovery. The net present value of the loss would have amounted to approximately 40%. The central government budget deficit was sizeable and had grown from 1991 to 1993; as at May 1994, it was expected to amount to NOK 42.5 billion (before loan transactions) for that year. A strike would have caused an increase in that deficit.
The Government further submitted that Norway, together with Russia and Algeria, was the main gas exporting country to the European Union (“the EU”). In 1994 natural gas covered approximately 20% of the primary energy consumption in the EU countries. Norwegian gas supply counted for approximately 20% of gas imports and 10% of gas consumption in the EU area. The rigidity and inflexibility associated with pipeline delivery of natural gas implied that sources of gas supply were impossible or difficult to replace. Substantial volumes of hydrocarbons passing through the Emden (Germany) and later Zeebrugge (Belgium) landing points were largely irreplaceable in the short and medium term. Industries and households in this region in particular would depend on the Norwegian gas supply. A storage facility had been built in Germany but would only cover 12% of Norway’s obligations for a fortnight. In the event that the Norwegian gas supply were to be cut off, the consequences would be substantial for the North German and North Belgian industries, which did not have any alternative possibilities and would be faced with complex shutting down and restarting procedures. Norway had therefore undertaken to be a reliable gas supplier, notably under the Troll Gas Sales Agreements, which took effect in October 1993, and involved an investment of over NOK 100 billion for platforms, terminals and pipelines and NOK 2 billion for a storage facility. Under these agreements suppliers and buyers were bound under unique physical and commercial arrangements forming a complex web of mutually dependent relations, with stability in gas supply being a key element. Any suspension in delivery would be likely to lead to a dramatic fall in both current and future gas prices.
In response to the above-mentioned information adduced by the Government, the applicants submitted information to the effect that the real price per barrel of crude oil was NOK 124.90 in 1994, NOK 119.30 in 1995, NOK 147.10 in 1996, NOK 145.70 in 1997, NOK 101.40 in 1998, NOK 146.60 in 1999 and NOK 253.00 in 2000. In 2000 it was assumed that the average lifetime of oil fields was, in fact, longer than the 1994 estimate of seven years, on which the Government apparently relied. A deferment of production from 1994 because of a strike could thus have led to far higher real prices than would have been achieved without a delay, and a present value loss that was less than the 40% suggested by the Government.
The applicant further stated that in 1994 Norway had an export surplus of NOK 54 billion and the public administration had been in the unique position of having significant net receivables (NOK 263.9 billion in 1992, 244.1 billion in 1993, 233.8 billion in 1994 and 261.1 billion in 1995).


ITEMID: 001-96149
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF KASYANCHUK v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Article 1 of Protocol No. 1 - Protection of property
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Renate Jaeger
TEXT: 4. The applicant was born in 1953 and lives in the village of Uzhachyn, Zhytomyr Region.
5. The applicant worked at the State-owned Atomspetsbud company (Державна будівельно-промислова компанія «Атомспецбуд»).
6. On an unspecified date the applicant instituted proceedings against the above company in the Novograd-Volynskyy Town Court (“the Town Court”) claiming 8,677.37 Ukrainian hryvnias (UAH) in salary arrears.
7. By an order of the Ministry of Energy dated 27 June 2002, the company was liquidated and a liquidation commission established.
8. On 15 April 2003 the Town Court terminated the proceedings in the case because the company was in liquidation.
9. By a letter of 15 December 2003 the liquidation commission acknowledged the applicant's claim of UAH 8,677.37. The applicant was included in the register of creditors of the company.
10. On 19 December 2008 the applicant was paid the full amount of the outstanding debt.
11. The relevant domestic law is summarised in the judgment of Mykhaylenky and Others v. Ukraine (nos. 35091/02, and the following, §§ 24-33, ECHR 2004XII).
VIOLATED_ARTICLES: P1
VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-88157
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: GABOROVA v. THE CZECH REPUBLIC
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Volodymyr Butkevych;Zdravka Kalaydjieva
TEXT: The applicant, Mrs Hana Gáborová, is a Czech national who was born in 1941 and lives in Liberec. The Czech Government (“the Government”) were represented by their Agent, Mr V. Schorm, from the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1954 the applicant’s parents sold their real estates to a certain P. The sale contract is, according to the applicant, invalid, because the State allegedly did not consent to this transaction, P. did not occupy the estates and did not pay the purchase price. Since the applicant’s parents did not seem to be willing to re-occupy the property, this fell into State ownership.
I. Proceedings on the nullity of the sale contract (no. 20 C 67/94)
On 13 January 1994 the applicant filed an action against J.P. and M.P. seeking to declare the sale contract null and void.
On 22 August 1994 the Liberec District Court (okresní soud) discontinued the proceedings following the applicant’s withdrawal of her action. The court’s decision became final on 5 October 1994.
II. Proceedings on the nullity of the sale contract (no. 20 C 1210/94)
On 3 October 1994 the applicant filed an action against J.P., M.P. and J.P.jr seeking to declare the sale contract null and void.
On 18 October 1994 the District Court discontinued the proceedings following the applicant’s withdrawal of her action. The court’s decision became final on 19 January 1996.
III. Proceedings on the determination of property rights (no. 20 C 1604/95)
On 26 October 1995 the applicant brought proceedings against M.P. seeking to determine her property rights to the real estates which had belonged to her parents.
On 17 August 2000 the District Court discontinued the proceedings upon the applicant’s withdrawal of her case. The decision became final on 24 October 2000.
IV. Proceedings on the determination of property rights (no. 20 C 129/96)
On 6 February 1995 the applicant brought new proceedings seeking to determine her property rights to the real estates, this time against M.P. and J.P.jr.
On 17 August 2000 the District Court discontinued the proceedings upon the applicant’s withdrawal of her case. The decision became final on 21 September 2000.
V. Restitution proceedings
On 13 January 1999 the applicant brought a number of actions for recovery of the property.
On 10 January 2000 the District Court decided to deal with the actions separately.
i) Restitution proceedings no. 20 C 60/2000
On 17 August 2000 the applicant withdrew her restitution action brought against M.P. The proceedings were discontinued on the same day. The District Court’s decision delivered in this respect became final on 24 October 2000.
ii) Restitution proceedings no. 20 C 61/2000
The applicant’s action brought against the Hunting Association Mlýnice (Myslivecké sdružení Mlýnice) was originally sent as a supplement to her action registered under no. 20 C 129/96 (see above).
On 10 January 2000 the proceedings were severed for separate consideration and decision.
The proceedings terminated in a decision of the Ústí nad Labem Regional Court (krajský soud) of 14 June 2005 which became final on 22 June 2005.
iii) Restitution proceedings no. 20 C 62/2000
The applicant’s action brought against the Nová Ves Municipality (Obec Nová Ves) was originally sent as a supplement to her action registered under no. 20 C 129/96 (see above).
The proceedings were severed and terminated on 11 October 2005.
iv) Restitution proceedings no. 20 C 63/2000
The applicant’s action brought against the Liberec Land Funds (Pozemkový fond) was originally sent as a supplement to her action registered under no. 20 C 129/96 (see above).
The proceedings were severed and terminated in a decision of the Supreme Court (Nejvyšší soud) of 12 December 2006.
v) Restitution proceedings no. 20 C 64/2000
The applicant’s action brought against the Forestry of the Czech Republic (Lesy České republiky) was originally sent as a supplement to her action registered under no. 20 C 129/96 (see above).
The proceedings were severed and terminated in a decision of the Regional Court of 31 March 2005 which became final on 14 April 2005.
vi) Restitution proceedings no. 15 Ca 457/93
On 20 May 1993 the Liberec Land Office (pozemkový úřad) rejected the applicant’s claim for restitution of her parents’ property. In a judgment of 11 November 1993 the Regional Court upheld the administrative decision. The judgment became final on 16 December 1993.
On 27 February 2007 the applicant filed a constitutional appeal (ústavní stížnost) which the Constitutional Court rejected as having been introduced outside the sixty-days’ statutory time-limit on 22 March 2007.
VI. Proceedings on the determination of the applicant’s inheritance (no. 20 C 1085/2000)
On 21 August 2000 the applicant filed an action against M.P. to establish that the latter’s property should be included in the applicant’s inheritance.
The proceedings were discontinued on 15 December 2000, the applicant having not complied with the District Court’s request to rectify certain shortcomings in her action. The decision became final on 12 January 2001.
The relevant domestic law and practice concerning remedies for the length of judicial proceedings are stated in the Court’s decision in the case of Vokurka v. Czech Republic, no. 40552/02 (dec.), §§ 11-24, 16 October 2007).


ITEMID: 001-68303
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: KRAVCHUK v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Toviy Ivanovich Kravchuk, is a Russian national, who was born in 1952 and lives in Sochi. The respondent Government are represented by Mr P. A. Laptev, the Representative of the Russian Federation at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant's house is situated on a steep bank of the river Persiyanka. The only public driveway to his house goes along the river, in a land-slide area. The road is quite narrow and it is locked between the riverside and the land of the applicant's neighbour, Ms K.
In 1997 Ms K. built a garage. The garage went beyond the boundaries of her land and entrenched on the road. As a result, Ms K. was subjected to an administrative fine for unauthorised construction. However, in March 1998 the local council decided to regularise the existing situation and proposed Ms K. to lease the territory under the garage from the council.
On an unspecified day in 1998 the applicant brought court proceedings against Ms K. and the local council claiming that the garage was built in breach of the domestic city planning regulations. The applicant also alleged that that the garage hindered access to his land by car.
On 18 November 1998 the Lazarevskiy District Court took the decision in the applicant's favour. On 2 March 1999 the Krasnodar Regional Court quashed this decision and remitted the case for a fresh examination.
On 11 May 1999 the Lazarevskiy District Court found in the applicant's favour. The court held that the garage had been built without due permission of the city administration and exceeded the boundaries of Ms K.'s land. The court, referring to an expert report of 7 May 1999, also held that the access to the applicant's land had been seriously hindered by the garage. The court ordered Ms K. to remove the garage and pay damages to the applicant in the amount of 3,151 Russian roubles (RUR). No appeal followed, and the decision became final.
In December 1999 the court bailiffs recovered RUR 3,500 from Ms K. The applicant received RUR 2,766 of this sum, the rest being withheld by the bailiffs as an enforcement fee. The court decision ordering Ms K. to remove the garage remained unexecuted.
On 8 August 2000 the city administration legalised the garage by delivering a building permit to Ms K. and annexing the parcel under the garage to Ms K.'s land.
On an unspecified date Ms. K. brought new court proceedings against the applicant seeking to re-open the case “due to the discovery of new facts”. According to Ms K., shortly after 11 May 1999 (that is the date of the first court decision) she learned that a geodesic research had been carried out by the city planning authority. This research had shown that due to a long-distance power line running over Ms K.'s land, it had been impossible to build a garage otherwise than exceeding the boundaries of the plot. Consequently, in 2000 the boundaries of Ms K.'s land were delimited anew. An expert report drawn on 1 December 2000 confirmed that the garage was now located on Ms K.'s land.
On 26 October 2000 the Lazarevskiy District Court granted the application for re-opening having applied Article 333 of the Code of Civil Procedure. On 25 January 2001 the court rendered a new judgment in this case. The court established that at the moment of the examination of the applicant's case it had not been aware of the findings of the expert report of 1 December 2000. The court noted that the second report was more “credible” than the initial report of 7 May 1999, referred to by the court in its decision of 11 May 1999. The court further noted that the plaintiff, Ms K., had presented documents entitling her to the land under the garage. On this ground the court dismissed the applicant's initial claims and awarded Ms K. damages in the amount of 4,912 RUR. On 1 March 2001 the Krasnodar Regional Court rejected the applicant's appeal against this decision.
On 4 May 2001 the Lazarevskiy District Court awarded to Ms K. 3,890 RUR as compensation for the money recovered from her pursuant to the court decision of 11 May 1999. It appears that this decision was not appealed to the second instance court.
In 2002, upon the applicant's request, the regional prosecutor brought an extraordinary appeal against the decision of 26 October 2000. On 21 November 2002 the Presidium of the Krasnodar Regional Court quashed the challenged decision stating that the circumstances adduced by the Lazarevskiy District Court as “newly discovered” should not have led to revision of the initial court decision of 11 May 1999. The court also discovered certain defects in the proceedings before the Lazarevskiy District Court. As a result, the case was remitted to the first instance court.
On 12 March 2003 the Lazarevskiy District Court decided that the decision of 11 May 1999 in the applicant's favour should remain in force. The court found, in particular, that the authorisation to build garage delivered to Ms K by competent authorities in 2000 did not constitute a “newly discovered circumstance” calling for revision of the court decision. On 17 April 2003 this decision was upheld by the Krasnodar Regional Court.
Ms K. brought new court proceedings against the local council claiming to recognise her property rights to the garage. On 24 February 2004 the Lazarevskiy District Court satisfied her claims declaring that the garage was Ms K.'s property. The court also ordered inscription of the garage in the land registry. The applicant did not participate in these proceedings.
According to Article 333 of the Code of Civil Procedure of 1964, final judgments can be reviewed due to discovery of substantial circumstances which were not and could not have been known to the person who applies for a review. Pursuant to Article 337, the decision of the court to re-open the proceedings on this ground is not subject to appeal.
For relevant provisions of the Russian law on the supervisory review procedure see Ryabykh v. Russia, no. 52854/99, §31-42, ECHR 2003X.


ITEMID: 001-60733
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF PŁOSKI v. POLAND
IMPORTANCE: 3
CONCLUSION: Violation of Art. 8;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 9. The applicant was born in 1949 and lives in Wrocław, Poland.
10. On 22 February 1994 the applicant was arrested by the police.
11. On 24 February 1994 the applicant was brought before the Wrocław District Prosecutor (Prokurator Rejonowy) who charged him with larceny and detained him on remand.
12. On 2 July 1994 the applicant’s mother died.
13. On 3 July 1994 the applicant made an application for leave to attend the funeral of his mother. The application was in the following terms:
“I kindly ask you to grant me leave, on the basis of the telegram received on 3.7.94, [to attend] the funeral of my mother Płoska Stefania, address Bełchatów 67-400, Osiedle Dolnośląskie, Blok 225 – who died, which is confirmed by the telegram [informing] that her funeral will take place on 5.07.1994.
I very kindly ask you to grant me leave – I would like to pay last respects to my mother, a beloved person whom I lost. I ask you to agree to my request – I thank you very much for that.”
14. The application was accompanied by the statement of a prison officer who supported the applicant’s request.
15. On 4 July 1994 the Wrocław-Śródmieście District Court refused the permission to grant the applicant leave considering that he “was a habitual offender whose return to the prison cannot be guaranteed.”
16. On 5 July 1994 the Penitentiary Judge rejected the applicant’s application for leave to attend the funeral of his mother. The judge’s decision was worded as follows:
“Further to the application of 3.07.1994 for compassionate leave I hereby inform you that, after analysing the case, I have not found grounds for granting such leave because there are no compassionate circumstances as referred to in Art. 59 § 1 of the Code of the Enforcement of Sentences. I should inform you that the Wrocław-Śródmieście District Court on 4.07.94 (...) refused permission to grant compassionate leave.”
17. On 3 August 1994 the applicant’s father died.
18. On 6 August 1994 the applicant made an application for leave to attend the funeral of his father. The application was in the following terms:
“I kindly ask you to grant me a compassionate leave because my father Wacław Płoski has died. The funeral will take place on 8.08.1994 and I would like to attend it and to pay last respects to him. I should add that this is yet another death because in July 94 my mother died and I did not attend her funeral. Now my dad has died, so that I have been left without parents and I would like to bid farewell and attend my dad’s funeral. I declare that I will return from leave on time and I will not breach the trust. I ask you to agree to my request and I thank you for that.”
19. The application was accompanied by the statement of a prison officer who confirmed that the applicant’s “behaviour was beyond reproach” and that he “stayed in touch with his wife and children.”
20. On 8 August 1994 the Wrocław-Śródmieście District Court refused permission to grant the applicant leave. The court gave the following reasons for its decision:
“The charges against the accused involve a significant danger to society. The accused Wacław Płoski is a habitual offender within the meaning of Article 60 § 2 of the Criminal Code. In the court’s view, his return to the Detention Centre cannot be guaranteed. It should be pointed out that the next hearing has been fixed for 11 August 1994. For these reasons the above decision has been made.”
21. On 9 August 1994 the Penitentiary Judge refused the applicant’s application for leave to attend the funeral of his father. The judge’s decision was worded as follows:
“Further to the application of 6.08.1994 for compassionate leave I hereby inform you that, after analysing the case, I have not found grounds for granting such leave because there are no compassionate circumstances as provided by Art. 59 § 1 of the Code of the Enforcement of Sentences – permission refused by the Wrocław-Śródmieście District Court”
22. In a letter of 17 January 1995 the applicant requested the President of the Wrocław Regional Court (Sąd Wojewódzki) to provide him with a written explanation of the reasons for which he had not been allowed to attend, either alone or under police escort, the funerals of his mother and father. On 31 January 1995 the Legal Secretary of the Wrocław Regional Court advised the applicant that his requests for leave had been rejected because he had been a recidivist posing a risk of absconding.
23. On 26 May 1995 the applicant was convicted of larceny and received a prison term.
24. On 27 February 1996 the applicant was released from prison.
25. The relevant provisions of the Code of the Enforcement of Sentences 1969 read as follows:
Article 59:
“§ 1 In compassionate cases the Penitentiary Judge may allow the prisoner to leave the prison, if necessary under the escort of prison officers, for a period not exceeding 5 days; ...
§ 2 In urgent cases the Prison Governor may grant temporary leaves for a period described in § 1 (...)”
Article 88 § 2:
“... [T]he leave described in Article 59 may be granted only after a permission has been obtained from the organ at whose disposal the detainee remains.”
VIOLATED_ARTICLES: 8


ITEMID: 001-61821
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF PASTELI AND OTHERS v. MOLDOVA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses (Convention proceedings) - claim dismissed
JUDGES: Nicolas Bratza
TEXT: 6. The applicants, all of whom are Moldovan citizens, live in the Republic of Moldova. They were born in 1920, 1927, 1925 and 1928 respectively.
7. On 29 July 1994 and on 16 February 1995 the Government and the Parliament passed two decisions according to which the deposits of certain categories of persons at the Savings Bank have to be index-linked. According to the decisions, the Ministry of Finance was supposed to allocate the necessary funds to the Savings Bank. However it failed to do so and the Savings Bank could not carry out the decisions of the Parliament and of the Government.
8. In 2000 and 2001 the applicants lodged with the Râşcani District Court civil actions against the Ministry of Finance in which they sought compensation.
9. By judgments of 25 August 2000 and 29 September 2000 the court awarded Ms Sofia Pasteli compensation of MDL 734 and MDL 1,466 respectively. No appeal was lodged and the judgments became final.
10. By judgment of 6 December 2000 the court awarded Ms Nadejda Cernicov compensation of MDL 4,398. No appeal was lodged and the judgment became final.
11. By judgment of 25 August 2001 the court awarded Mr Pavel Careţchi compensation of MDL 2,904. No appeal was lodged and the judgment became final.
12. By judgment of 25 August 2001 the court awarded Ms Maria Careţchi compensation of MDL 5,876. No appeal was lodged and the judgment became final.
13. On unspecified dates the applicants lodged complaints about the non-enforcement of the judgments with the Ministry of Justice and the Enforcement Authority. In its replies, the Ministry of Justice and the Enforcement Authority informed them that the judgments could not be enforced, as no funds had been provided for the enforcement of judgments by the relevant legislation within the annual State budget.
14. On 22 April 2003, after the cases were communicated to the Government, the judgments were executed by the Ministry of Finance.
15. The relevant provisions of the Code of Civil Procedure, in force at the material time, stated:
Article 336. The decisions of the courts and other authorities susceptible to enforcement
The following are the acts which have to be enforced in accordance with the provisions of the present Code: 1) Civil law judgments, orders and decisions adopted by the courts...
Article 338. The issuance of the enforcement warrant
The enforcement warrant is issued by the court to the creditor, after the judgment has become final, except for cases of immediate enforcement, when the enforcement warrant is issued immediately after the delivery of the judgment.
Article 343. The request to start the enforcement procedure
The bailiff starts the enforcement procedure at the request of the persons enumerated in Article 5 of the present Code. In cases provided for in the second paragraph of this article, the bailiff starts the enforcement procedure following the judge’s order.
Article 349. The supervision of enforcement of judgments
The supervision of the correct and prompt enforcement of judgments is conducted by the Department of Judgment Enforcement of the Ministry of Justice.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-85765
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF KLINAR v. SLOVENIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial;Violation of Article 13 - Right to an effective remedy
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Rajko Pirnat
TEXT: 5. The applicant was born in 1943 and lives in Jesenice.
6. On 20 August 1994 the applicant’s mother, A.K., died.
7. On 7 October 1994 the Jesenice Local Court (Okrajno sodišče na Jesenicah) received the coroner’s certificate (smrtovnica).
8. On 22 March 1995 the applicant was given notice of the court’s intention to hold a hearing in the inheritance proceedings and received an invitation to attend it.
9. The court held hearings on 5 April and 25 October 1995.
10. Meanwhile, on 5 July 1995, the applicant lodged written submissions.
11. On 16 June 1997 the court issued an interim decision concerning the inheritance of A.K.’s ownership certificate (lastninski certifikat).
12. On 27 June and 5 September 2000 hearings were held. They were adjourned so as to allow the heirs to reach an agreement in respect of the inheritance. The subsequent negotiations were apparently unsuccessful.
13. On 8 November 2000 the applicant lodged written submissions.
14. At the hearing held on 14 November 2000 the court decided to stay the proceedings and instructed the parties to institute separate contentious proceedings with a view to determining the extent of A.K.’s estate which was disputed by the heirs.
15. On 5 February 2001 one of the heirs lodged a civil claim with the Kranj District Court (Okrožno sodišče v Kranju) in accordance with the Jesenice Local Court’s instructions (paragraph 14 above). On 27 October 2003 the civil proceedings ended with an agreement between the heirs and the inheritance proceedings subsequently continued.
16. In the meantime, on 19 December 2000 the Jesenice Local Court rejected the applicant’s request for interim measures. In addition, on 15 March 2001 the Jesenice Administrative Unit (Upravna enota Jesenice) issued a decision indicating that the farmland which was part of A.K.’s estate was not under the special protection which would prevent its division. The Jesenice Local Court received that decision on 18 May 2001.
17. On 28 November 2003 the Jesenice Local Court issued a decree of distribution (sklep o dedovanju) dividing the remainder of A.K.’s estate (see paragraph 11 above) between her four daughters. The decree was served on the applicant on an unspecified date in December 2003.
18. Section 164 of the Inheritance Act (Official Gazette SRS, no. 15-645/1976, with amendments, – Zakon o dedovanju) provides that inheritance proceedings should begin ex officio as soon as the court learns that somebody has died or has been pronounced dead. In inheritance proceedings the court should establish the heirs, the property which is to be included in the deceased’s estate and the rights of heirs, beneficiaries and others (section 162).
19. According to section 199, after receiving the coroner’s certificate (a document concerning personal data about the deceased and his estate and information relevant for the inheritance, normally prepared by a registrar – matičar), the court examines whether it is competent to hold a hearing and, if not, sends the case to the competent court. According to sections 203 and 205, the court must hold a hearing if the deceased owned immovable property. It is the court’s obligation to invite those who might be affected to the hearing (section 205).
20. The Act on the Protection of the Right to a Trial without undue Delay (Zakon o varstvu pravice do sojenja brez nepotrebnega odlašanja, Official Journal, No. 49/2006) has been implemented since 1 January 2007. Under its sections 1 and 2, the right to a trial within a reasonable time is guaranteed for a party to court proceedings, a participant under the Act governing non-contentious proceedings and an injured party in criminal proceedings.
21. Section 25 lays down the following transitional rules in relation to applications already pending before the Court:
“(1) In cases where a violation of the right to a trial without undue delay has already ceased and the party had filed a claim for just satisfaction with the international court before the date of implementation of this Act, the State Attorney’s Office shall offer the party a settlement on the amount of just satisfaction within four months after the date of receipt of the case referred by the international court for the settlement procedure. The party shall submit a settlement proposal to the State Attorney’s Office within two months of the date of receipt of the proposal of the State Attorney’s Office. The State Attorney’s Office shall decide on the proposal as soon as possible and within a period of four months at the latest. ...
(2) If the proposal for settlement referred to in paragraph 1 of this section is not acceded to or the State Attorney’s Office and the party fail to negotiate an agreement within four months after the date on which the party filed its proposal, the party may bring an action before the competent court under this Act. The party may bring an action within six months after receiving the State Attorney’s Office reply that the party’s proposal referred to in the previous paragraph was not acceded to, or after the expiry of the period fixed in the previous paragraph for the State Attorney’s Office to decide to proceed with settlement. Irrespective of the type or amount of the claim, the provisions of the Civil Procedure Act concerning small claims shall apply in proceedings before a court.”
VIOLATED_ARTICLES: 13
6


ITEMID: 001-75862
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: IVANCIUC v. ROMANIA
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Cornel Ivanciuc, is a Romanian national who was born in 1956 and lives in Bucharest. He was represented before the Court by Mr D. Costea, a lawyer practising in Bucharest.
The facts of the case, as submitted by the applicant, may be summarised as follows.
After winning the local and parliamentary elections in 2000, the Social Democratic Party (PSD) had scheduled elections within its local and regional branches for 2001.
On 24 July 2001 the applicant, a journalist with the weekly satirical review Academia Caţavencu, published an article under the following heading:
“The contents of this page are based on actual facts, events and individuals. Any resemblance to reality is the result of lengthy investigation!”
The article was directed at a number of PSD branches and bore the title:
“Family secrets of main governing party’s provincial bosses in run-up to elections”
The article included the following passages:
“Despite appearances ... Timiş county is, by some margin, the PSD’s craziest. Chairman of the branch is the esteemed university lecturer Dr D.P. However, closer examination of the situation reveals that the leader is no more than an aristocratic figurehead, a harmless small fish in a pond beneath whose surface lurk some large and evil fish with shark-like tendencies and ambitions ...
Right now, deputy prefect Mr Dorel Gâtlan is the man calling the shots behind the scenes. Consider the facts: Gâtlan recently removed the secretary-general of Timiş prefect’s office, D.B., from his post. The latter had refused to sign an order from the prefect, drawn up by Gâtlan, handing over possession of a large piece of land in the border village of Cenad to V.M., a PSD senator ...
Deputy prefect Gâtlan whipped D.B. out like a rotten tooth for having the temerity not to put his name to the illegal appropriation of the land by the senator and his pack of hounds. He did not rest until D.B. had been removed from any outfit even remotely concerned with the restitution of land ...
But don’t be fooled into thinking that Dorel Gâtlan doesn’t have problems of his own. He has two major problems. The first concerns the land he inherited from his daddy in the village of Cernăteaz. Roughly 17 hectares of marshland ... Given the pitiable state of his inheritance, Mr Gâtlan has his eye on a roadside property in the municipality of Gearmata. Unfortunately for him, the mayor of Gearmata, who chairs the local committee on implementation of the Real Property Act, is against the exchange of the two pieces of land. Without further ado, Gâtlan suspends him from his post and hands him over to the police, who open two criminal investigations against him ... It should be noted that in Romania dealings in real property are coordinated, by law, by the prefects. However, in Timiş county, the deputy prefect has long since supplanted the prefect by stripping him of all his powers.
Gâtlan’s biggest personal problem arose on 1 January 1998, when he fatally injured the septuagenarian C.M. in an accident. The victim was a shop caretaker ... His executioner, who at the time was sales director of the S.C. Radiotel Timişoara company, was driving under the influence of recent New Year’s Eve Bacchanalian celebrations. The victim was small and thin. The impact was so sudden and so violent that the bonnet and windscreen of the executioner’s car were smashed to pieces. The victim’s internal organs, also in pieces, were scattered over a radius of a hundred metres. Gâtlan’s friends in the police said that the executioner’s car had been travelling at only 40 km.p.h. Unfortunately for Gâtlan, the victim’s soninlaw is the university lecturer Dr V.B. ...
Initially, Gâtlan obtained a ruling that there was no case to answer, and the case was closed. However, Dr V.B. subsequently sent a memorandum to the Procurator-General of Romania and the case was reopened. Sickened by the machinations of those in power, whose excesses are such that the PSD’s exploits in Timiş county surpass even those in the capital, V.B. dismissed his lawyer and lost the case following an appeal by Gâtlan. The executioner was merely ordered to pay the victim’s family 20,000,000 lei in damages. V.B. then made one last-ditch attempt to get rid of Gâtlan. Shortly before the appointment of the prefects and deputy prefects, he tried desperately to alert the Civil Service Minister and the Prime Minister to the fact that Gâtlan was not fit for the job of deputy prefect, as he was guilty of killing through negligence.
But the die has already been cast. The person pulling strings to have Gâtlan appointed is the current Minister of Agriculture, I.S. At first, V.B.’s case had been backed up to prime ministerial level by his colleague P.A., PSD member of parliament for Timiş county and a university lecturer. But, under pressure from the rector of Timişoara Polytechnic, a leading PSD member, V.B. was forced to drop the case unconditionally and hold his tongue. The same sources say that the rector himself had come under intense pressure from I.S. [the Minister of Agriculture] to persuade V.B. to drop his complaint against Gâtlan. And Gâtlan, by way of thanks for being found not guilty and having his reputation restored vis-à-vis his superiors, never made any apology, not even a purely formal one, to the victim’s family.
Our readers are no doubt well aware that Gâtlan is the most ardent supporter of I.S.’s election to the chair of the PSD county branch.”
On 25 September 2001 Mr Gâtlan lodged a criminal complaint with the Timişoara Court of First Instance, alleging that the applicant had made several defamatory and insulting statements in his article, in breach of Articles 205 and 206 of the Criminal Code. He also applied to be joined as a civil party to the proceedings against the applicant and the weekly review Academia Caţavencu, the party with civil liability.
Although the applicant was summoned to appear and a warrant was issued for him to be brought immediately before the court, he did not attend any court hearing, nor did he produce any evidence in his defence.
In a judgment of 6 March 2002, the court rejected the criminal complaint on the ground that there was no evidence in the case file that the applicant had published the article with the intention of insulting or defaming the complainant. The court therefore acquitted the applicant, finding that one of the elements constituting the offences of insult and defamation was lacking, namely intent.
However, the court observed that the applicant had accused the complainant of causing a road traffic accident by driving under the influence of alcohol and of unfairly dismissing the secretary-general of the prefect’s office and the mayor of a municipality. The court considered that those assertions were inaccurate, since the courts which had tried Mr Gâtlan on a charge of manslaughter had not found him guilty of driving under the influence of alcohol. It also observed that the two persons referred to above had been removed from office by order of the prefect, and that there was nothing to suggest that the complainant had influenced the decisions in any way.
In view of the circumstances, the court found that the complainant should be awarded damages since, while the offences of which the applicant stood accused did not fall within the sphere of criminal law, they were such as to render him liable in tort, as he had not checked thoroughly the facts set out in his article. Accordingly, under Articles 998 and 999 of the Civil Code, the court ordered the applicant and the weekly review jointly and severally to pay the complainant 5,000,000 Romanian lei (ROL) in respect of the non-pecuniary damage sustained.
The applicant, the weekly review Academia Caţavencu and the complainant all lodged appeals against the judgment with the Timiş County Court. The applicant appealed against the award of compensation for nonpecuniary damage, arguing that the complainant had not proved the existence of such damage. The complainant, for his part, requested that the applicant be convicted of insult and defamation and that the amount of compensation be increased.
On 7 June 2002 the court allowed the request for an adjournment lodged by the applicant’s lawyer. At a hearing on 3 July 2002, the applicant’s lawyer raised an objection of unconstitutionality in respect of the first two paragraphs of Article 346 of the Code of Criminal Procedure and requested the court to stay its decision on the merits and to refer the case to the Constitutional Court. He argued in particular that, for a criminal court to decide on a claim for damages without the civil party having paid stamp duty, when the defendant had been acquitted, was in breach of the constitutional principles of protection of private property and prohibition of discrimination with regard to the payment of taxes and levies. The applicant’s lawyer alleged that the exemption from stamp duty gave the civil party an unfair advantage over individuals who, in order to have access to a civil court, had to pay stamp duty in proportion to the amount being claimed.
On 8 July 2002, under the third and sixth paragraphs of section 23 of the Constitutional Court (Organisation and Operation) Act (Law no. 47/1992), the court declared the objection inadmissible on the ground that the Constitutional Court had already ruled several times, notably on 2 December 1997, 3 February 1998 and 1 February and 23 May 2001, on the constitutionality of the Article in question, and had found it to be compatible with the Constitution.
On 19 November 2002 the applicant’s lawyer lodged a memorial with the registry of the County Court, objecting that the first and sixth paragraphs of section 23 of Law no. 47/1992 were in breach of the Constitution. He submitted that the condition laid down in the first paragraph of the section in question for the referral of an objection to the Constitutional Court, namely that the provision in issue must be decisive for the outcome of the case, allowed the courts a margin of appreciation and was therefore contrary to the constitutional principle of free access to a court. Pointing out that the third paragraph of the section in question ruled out referral to the Constitutional Court only of objections relating to provisions which had already been found to be unconstitutional, the lawyer concluded that the court should have referred his first objection to the Constitutional Court.
On 20 November 2002 the court observed that neither the applicant nor his lawyer had attended any hearings, although the applicant had been repeatedly given notice to appear. The court dismissed the objection of unconstitutionality raised the previous day, finding that it had already been examined at the hearing of 3 July 2002.
The hearing was held the same day and, in a fresh decision on the merits, the court allowed the complainant’s appeal and ordered the applicant to pay a criminal fine of ROL 500,000 for insult and defamation. It also ordered him, jointly and severally with the weekly review, to pay the complainant ROL 10,000,000 in compensation for the nonpecuniary damage sustained.
The court found that the assertions concerning the removal from office of the mayor of a municipality and the complainant’s having driven while under the influence of alcohol had been defamatory, since they had lacked any factual basis and even the most cursory checking of the facts by the applicant would have revealed the truth. In that connection, the court pointed out that the mayor in question had been removed from office by an order of the prefect dated 30 March 2001, published in July 2001, and that the Timişoara Court of Appeal, in a final judgment of 8 November 2000, had found the complainant not guilty in relation to the road traffic accident, taking the view that the victim had been entirely at fault, having crossed the road without due care and attention.
In the circumstances, the court found that the use of the term “executioner” had been insulting.
In a dissenting opinion, one of the judges took the view that the applicant should have been acquitted, as account should have been taken of the fact that the weekly review Academia Caţavencu had a reputation as a satirical publication which made frequent revelations concerning the professional and private conduct of politicians. He added that the complainant could have obtained satisfaction by making use of his right of reply.
“Any attack on an individual’s honour and reputation through words, gestures or other means shall be punishable by a prison sentence of between one month and two years or by payment of a fine.”
“Any public statement or allegation concerning an individual which, if true, would render that individual liable to a criminal, administrative or disciplinary penalty or expose him or her to public opprobrium, shall be punishable by a prison sentence of between three months and one year or by payment of a fine.”
“Evidence of the truth of such a statement or allegation shall be admissible where it was made in order to protect a legitimate interest. Where the truth of the statement or allegation is proved, no offence of insult or defamation shall be deemed to have been committed.”
“Any act committed by a person that causes damage to another shall render the person through whose fault the damage was caused liable to make reparation for it.”
“Everyone shall be liable for damage he has caused not only through his own act but also through his failure to act or his negligence.”
“The victim of an offence may apply to join the proceedings as a civil party seeking damages against the defendant or the party with civil liability ...”
The civil action shall be exempt from stamp duty.”
“In its decision to convict or acquit the defendant, the court shall also rule on any claims for damages.
When the defendant has been acquitted ... on the ground that one of the elements constituting the offence is lacking, the court may order compensation to be paid in accordance with the rules of civil law.”
“The Constitutional Court shall rule on objections raised before the courts relating to the constitutionality of a [government] law or decree or of a provision of a [government] law or decree which is in force and is decisive for the outcome of the case.
The objection may be raised by the court of its own motion or by one of the parties.
Provisions which have been found to be unconstitutional by an earlier decision of the Constitutional Court ... may not be the subject of an objection of unconstitutionality.
The Constitutional Court shall rule on an interlocutory decision by the court with which the objection of unconstitutionality was lodged ...
The proceedings before the court shall be stayed pending examination of the objection by the Constitutional Court.
If the objection is declared inadmissible because it does not fulfil the requirements of the first three paragraphs, the court shall dismiss it by means of a reasoned decision without referring it to the Constitutional Court.”


ITEMID: 001-91726
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF SERGEY VOLOSYUK v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 6-1;Violations of Art. 8;Non-pecuniary damage - award
JUDGES: Isabelle Berro-Lefèvre;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Stanislav Shevchuk
TEXT: 5. The applicant was born in 1976 and is currently imprisoned.
6. On 31 December 1999 the applicant, Mr D. and Mr G. were arrested by the police on suspicion of having committed a murder.
7. On 3 January 2000, given the gravity of the offence of which the applicant was suspected, the investigator of the Druzhkivka District Prosecutor’s Office decided that the applicant should be remanded in custody for up to two months. The same day the Druzhkivka District Prosecutor issued the arrest warrant, authorising thereby the investigator’s decision.
8. On 20 February 2000 the Druzhkivka District Prosecutor extended the term of the applicant’s detention until 31 March 2000.
9. On 23 March 2000 the applicant, Mr D. and Mr G. were charged with murder.
10. On 24 March 2000 the investigator completed the investigation and gave the applicant and the co-accused access to the case file. However, on 11 April 2000 the investigator reopened the investigation and additionally charged the applicant with aggravated robbery. On 12 April 2000 the investigation was completed and the applicant and the co-accused continued studying the case-file until 27 April 2000.
11. On 6 May 2000 the supervising prosecutor approved the bill of indictment and transferred the case file to the Donetsk Regional Court of Appeal (hereafter “the Court of Appeal”) for trial proceedings.
12. On 17 May 2000 the Court of Appeal committed the applicant and the co-accused for trial and held that the preventive measure in their respect was to remain unchanged. The hearing took place in the presence of the prosecutor, but the applicant and his lawyer were absent.
13. On 2 October 2001 the Court of Appeal held a hearing in the applicant’s case, where it considered several applications submitted by the co-accused and adjourned consideration of the case until the requisite technical facilities could be installed for the proceedings. According to the applicant, the Court of Appeal also adjourned consideration of his release request, lodged before the hearing.
14. According to the applicant, in the period between 2 October 2001 and 6 October 2003 he lodged about twenty requests for his release with the Court of Appeal, referring to his health problems and relying on his right to a trial within a reasonable time or release pending trial as guaranteed by Article 5 § 3 of the Convention. Those requests remained unanswered however.
15. On 6, 7, 8, 9 and 10 October 2003 the Court of Appeal held hearings in the case during which it examined the evidence and questioned the defendants and witnesses.
16. Further court hearings took place on 26 and 27 January, 9, 10, 11, 15, 23, and 24 March, and 26 and 28 April 2004, during which the Court of Appeal continued examining the evidence and questioning witnesses. Within that period the hearings were adjourned three times because one of the defendants was feeling ill and twice because the counsel of the other defendant failed to appear before the court.
17. In a letter of 4 March 2004 the Deputy President of the Court of Appeal informed the applicant that his latest complaint about the excessive length of the proceedings had been rejected on the same basis as the previous ones, namely that there were compelling and valid reasons for the delays in the proceedings. However, the nature of those reasons was not specified in the letter.
18. On 6 May 2004 the Court of Appeal considered the applicant’s release requests and rejected them, holding that he was charged with a grave offence and, if at large, might influence the proceedings. The Court of Appeal further adjourned the case in order to question additional witnesses.
19. On 14 May 2004 the Court of Appeal found, inter alia, that the applicant was guilty of having committed a murder and aggravated robbery. It sentenced him to fourteen years’ imprisonment, minus the time spent in pre-trial detention, and ordered the confiscation of his property. On 16 December 2004 the Supreme Court upheld that judgment.
20. During his detention on remand the applicant wrote letters in which he complained about his conditions of detention to various officials, including a public prosecutor supervising penitentiary establishments, the Ombudsman, the Prisons Department and Members of Parliament. In accordance with the prescribed procedure, these letters were sent through officials at the detention centre, who dispatched them to the addressees. The applicant’s letters were subject to automatic monitoring and censorship except for those addressed to the prosecutors and, in the later stages of his detention, to the Ombudsman.
21. According to the applicant, in February 2003, while being held in the detention centre, he wrote a complaint to the Donetsk Directorate of the Prisons Department, describing the ill-treatment and arbitrary punishment inflicted on him by officials at the detention centre. He sent the complaint without going through the officials at the detention centre, in violation of the domestic legislation. Shortly after the complaint had reached the addressee, the governor of the detention centre punished the applicant with ten days’ confinement in a disciplinary cell for breaching the procedure for sending letters.
22. Article 236-3 of the Code provides that the detainee or his defence counsel or legal representative may appeal against the prosecutor’s arrest warrant to the relevant district (city) court. The appeal may be lodged directly with the court or through the officials at the pre-trial detention centre, who must send the appeal to the relevant court within twenty-four hours of receiving it.
23. On 21 June 2001 amendments were introduced to the Code, providing that within seventy-two hours the arrested criminal suspect was to face the court for deciding on his further detention.
24. Article 273 of the Code provides, inter alia, for the court to set out interim decisions on preventive measures in the form of a separate document.
25. According to Article 274 of the Code the court, if appropriate, may order, change, or discontinue a preventive measure in respect of the defendant.
26. Section 13 of the Act provides, inter alia, for persons detained on remand to be able to correspond with relatives, other persons and legal entities upon written consent by the authority in charge of the criminal case against the detainee concerned.
The officials of the detention centre must review all the letters of the detainees except for those which are addressed to the prosecutor. Since 6 February 2003 this exception has been extended to cover letters addressed to the Ombudsman.
If the letter is related to the criminal case against the detainee concerned it has to be handed over within three days to the authority in charge of the detainee’s criminal case for consideration. Letters containing information which can obstruct justice must not be dispatched to the addressee but must be handed over to the authority in charge of the detainee’s criminal case. The detainee and the prosecutor must be informed of the interception made.
If a letter is not related to the detainee’s criminal case, it must be answered by the officials at the detention centre or sent to the addressee.
27. The same section of the Act requires any appeal against the prosecutor’s arrest warrant authorising pre-trial detention as a preventive measure to be sent by the detention centre to the relevant court within twenty-four hours. The prosecutor must be notified at the same time.
28. Under section 15 of the Act detention centre officials may impose on detainees who violate detention regime rules such penalties as warnings or reprimands, additional cleaning of the cell or a one-month ban on buying food and receiving parcels.
If a detainee intentionally violates detention regime rules, he may be placed in a disciplinary cell for up to ten days, following a reasoned order issued by the governor of the detention centre.
The section further stipulates that the penalties imposed on detainees should be proportionate to the gravity and nature of the infringement.
29. Paragraph 1 of the Resolution provides that in accordance with Article 236-3 of the Code of Criminal Procedure, the subject of appeal shall only be the arrest warrant issued by the prosecutor for the detention of the suspect or accused, and not the decision of the investigator or the investigating body concerning the applicable custodial preventive measure or the decision of the court (judge) to detain the defendant.
VIOLATED_ARTICLES: 5
6
8
VIOLATED_PARAGRAPHS: 5-3
5-4
6-1


ITEMID: 001-92809
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: GREENPEACE E.V. AND OTHERS v. GERMANY
IMPORTANCE: 2
CONCLUSION: Inadmissible
JUDGES: Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: The application was lodged by the association Greenpeace e.V., represented by Ms Behrens, and four other applicants. The applicants Ms Löhden, Ms Franzenburg, Mr Teske, and Mr Smid are German nationals who were born in 1961, 1969, 1966 and 1958 respectively and live in Hamburg. They were represented before the Court by Mr M. Günther, Mr H.-G. Heidel, Dr U. Wollenteit and Mr M. Hack, all lawyers practising in Hamburg.
The applicant association has its business office, and the other four applicants live or lived, close to busy roads and intersections in Hamburg.
On 20 August 2001 the applicants requested the German Federal Bureau of Motor Vehicles and Drivers (Kraftfahrtbundesamt) to take specific measures designed to curb respirable car dust emissions of diesel vehicles. The applicants requested the Federal Bureau of Motor Vehicles and Drivers to:
threaten the car manufacturers with withdrawal of the general operating licence (Allgemeine Betriebserlaubnis) for certain diesel vehicles unless they recalled the cars in question and equipped them with particulate filters within a reasonable time-limit;
revoke the general operating licence after the time-limit for the retrofitting had expired; and
refuse to issue the general operating licence for diesel vehicles if the cars exceeded a certain critical limit of particles.
On 3 September 2001 the Federal Bureau of Motor Vehicles and Drivers rejected the request. It held that the general operating licenses were issued in accordance with German and European legislation. On 8 November 2001 the Federal Bureau of Motor Vehicles and Drivers dismissed an administrative objection by the applicant, holding that there was no legal basis for an obligation to install particulate filters.
On 7 September 2001 the applicants lodged an action with the administrative courts.
On 1 April 2003 the Schleswig-Holstein Administrative Court dismissed the applicants’ action in its entirety. It held that the applicant association’s action was inadmissible since Greenpeace e.V. lacked the right to sue in the present case. The applicant association could not claim any right; in particular, it could not rely on a right to be protected from a health impairment. With respect to the other four applicants, the Administrative Court declared the action admissible, holding that they could rely on a positive obligation of the State emanating from their constitutional right to life and physical integrity. On the merits it found that the State authorities enjoyed a wide latitude and were only under an obligation to take measures of a kind that could not be said to be wholly inappropriate or insufficient for the protection of individuals’ rights. Referring to environmental reports submitted by the applicants, the court accepted that the particles were dangerous for the human organism but held that the German legislature was cognisant of the problem of respirable dust particles and, in accordance with European Union (EU) legislation, had taken measures to curb such emissions. It added that the authorities were constantly monitoring the situation and had already announced further plans to tighten emission limits. The State had a general interest in the limitation of car emissions being harmonised at EU level. The Administrative Court accepted that particulate filters were a very effective measure to curb emissions, but noted that other possible means included, for example, tax incentives for low-emission cars or road-traffic related measures. It concluded that the wide latitude available to the State to comply with its positive obligation had in the present case not been narrowed down to such an extent that the State authorities were under an obligation to take the specific measures requested by the applicants.
On 19 December 2003 the Schleswig-Holstein Administrative Court of Appeal confirmed that Greenpeace e.V. lacked the right to sue. It rejected, in particular, the applicant association’s argument that the right to sue could be deduced from the fact that Greenpeace, as an employer, was responsible for the health of its employees. On the merits the Court of Appeal upheld the reasoning of the Administrative Court. It held that the State’s positive obligation did not compel State authorities to take the measures the applicants had requested; it was for the legislature and not the judiciary to decide on the appropriate ceiling on respirable dust emissions. The German legislature had met the requirements emanating from its positive obligation when implementing the critical values required under the European directives.
On 7 November 2005 the Federal Constitutional Court, without giving any reasons, refused to admit the constitutional complaint lodged by the applicants.