ITEMID: 001-99994
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF AKSU v. TURKEY
IMPORTANCE: 2
CONCLUSION: Preliminary objection dismissed (victim);No violation of Art. 14+8
JUDGES: Françoise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria
TEXT: 5. The applicant was born in 1931 and lives in Ankara.
6. In 2000 the Ministry of Culture published a book entitled “The Gypsies of Turkey”, written by Associate Professor Ali Rafet Özkan.
7. On 15 June 2001 the applicant filed a petition with the Ministry of Culture on behalf of the Turkish Gypsy associations. In his petition, he stated that in twenty-four pages of the book, the author had stated that Gypsies were engaged in illegitimate activities, lived as “thieves, pickpockets, swindlers, robbers, usurers, beggars, drug dealers, prostitutes and brothel keepers” and were polygamist and aggressive. Furthermore, Gypsy women were presented as being unfaithful to their husbands. The applicant also submitted that the book contained several other expressions that humiliated and debased Gypsies. Claiming that the expressions constituted criminal offences, he requested that the sale of the book be stopped and all copies seized.
8. On the same day, the head of the publication unit at the Ministry of Culture ordered that all copies of the book be returned to the publication unit as there were corrections to be made.
9. On 11 October 2001 the applicant wrote a letter to the Ministry of Culture enquiring whether the copies of the book had been seized.
10. On 17 October 2001 the head of the publication unit at the Ministry of Culture informed the applicant that the publications advisory board of the Ministry, composed of seven professors, had decided that the book was scientific research and that the expressions in the book did not contain any insults or similar expressions. The applicant was also informed that the author of the book would not permit any amendments to the text and that, in accordance with the author’s request, the Ministry had transferred the copyright of the book to him.
11. On 4 February 2002 the applicant sent letters to the Ministry of Culture and to Associate Professor Ali Rafet Özkan and repeated his initial request. He received no reply.
12. Subsequently, on 30 April 2002, the applicant brought proceedings before the Ankara Civil Court of General Jurisdiction against the Ministry of Culture and the author of the book, and requested compensation for the non-pecuniary damage he had suffered on account of the expressions contained in the book. He alleged that the expressions constituted an attack on his identity as a Gypsy and were insulting. The applicant also asked for the copies of the book to be confiscated and for its publication and distribution to be banned.
13. The author of the book submitted, in reply, that he had used the records of the Adana police headquarters and books written by other authors on Gypsies when writing the book and that he had not had any intention to insult or humiliate Gypsies. The author further stated that the passages referred to by the applicant should not be considered in isolation, but in the context of the whole book.
14. On 24 September 2002 the Ankara Civil Court dismissed the applicant’s requests in so far as they concerned the author of the book. It considered that the book was the result of academic research, was based on scientific data and examined the social structures of Gypsies in Turkey. The first-instance court therefore held that the expressions in question did not insult the applicant. As to the applicant’s case against the Ministry, the firstinstance court decided that it lacked jurisdiction as the administrative courts had jurisdiction over the applicant’s claim.
15. On 25 October 2002 the applicant appealed. In his petition, he submitted that the book could not be considered as scientific research and that therefore the Ministry of Culture should not have published it.
16. On 21 April 2003 the Court of Cassation upheld the judgment of the first-instance court. In its decision it noted that the expressions in question were of a general nature. It therefore found no grounds for concluding that they concerned all Gypsies or that they constituted an attack on the applicant’s identity.
17. On 8 December 2003 a request by the applicant for rectification of the decision was dismissed.
18. Subsequently, on an unspecified date, the applicant initiated proceedings against the Ministry of Culture before the Ankara Administrative Court. He requested non-pecuniary compensation, alleging that the content of the book published by the Ministry of Culture had been offensive and insulting towards the Gypsy community. On 7 April 2004 the Administrative Court dismissed the applicant’s case. It held that before its publication, the book in question had been examined by a Rapporteur appointed by the publications advisory board. Following his approval, the advisory board had agreed to publish the book. In the wake of the applicant’s allegations the advisory board, composed of seven professors, had examined the book again on 25 September 2001 and had decided that it was an academic study based on scientific research and that no inconvenience would be caused by continuing its distribution and sale. The Administrative Court therefore concluded that the applicant’s allegations were unsubstantiated. It is not clear from the documents in the case file whether or not the applicant lodged an appeal against this decision.
19. The last paragraphs of the conclusion to “The Gypsies of Turkey” read as follows:
“The most important links connecting the Gypsies to each other are their familial and social structures as well as their traditions. Despite the fact that they have been leading a nomadic life for more than a thousand years, they have managed to protect their traditional way of living thanks to their endogamous character. Their attachment to these traditions begins at birth and continues till death. Doubtless, tradition is the most significant factor in the way of life of the Gypsies. The elderly members of the Gypsy society bear the heaviest responsibility in protecting and sustaining the traditions. However, due to ever-changing circumstances and needs, the social structure of the Gypsies has become difficult to preserve. In particular “Natia”, one of these social structures, can no longer be sustained in today’s Turkey.
The liveliest characteristic of Gypsies is their way of living. Hence, all branches of socio-cultural activity, consisting of migration and settlement, dance, music, language, eating and drinking, fortune telling, sorcery and professions, constitute the true nature of Gypsy life. That is to say, these elements form the visible part of the iceberg. Other persons usually recognise Gypsies through these phenomena. Nevertheless, the way to truly know Gypsies is to mingle with their society and to fully analyse their traditions and beliefs. The secret world of the Gypsies reveals itself through their beliefs, in particular through their superstitions and taboos.
Gypsies, like everyone, feel the need to have faith and to worship. In addition to adopting the religion of the country they live in, they also perpetuate the traditional beliefs specific to their culture. Consequently, it is observed that Gypsies have genuine feasts and celebrations stemming from their beliefs which can be partly traced to Hinduism.
In our opinion, these people, who suffer from humiliation and rejection everywhere, could be transformed into citizens who are an asset to our State and our nation once their educational, social, cultural and medical problems are solved. The only thing that needs to be done is to focus on this issue with patience and determination.”
20. In December 1998 the Language Association, a non-governmental organisation, published a dictionary entitled “Turkish Dictionary for Pupils”. The publication of the dictionary was financed by the Ministry of Culture.
21. On 30 April 2002 the applicant sent a letter to the Executive Board of the Language Association on behalf of the Confederation of Gypsy Cultural Associations. In his letter, the applicant submitted that certain entries in the dictionary were insulting to and discriminatory against Gypsies. In this connection, he referred to the descriptions and idioms below:
“Gypsy” (çingene): (metaphorically) stingy.
“Gypsyness” (çingenelik) (metaphorically): stinginess, greediness.
“Becoming a Gypsy” (Çingeneleşmek): “displaying stingy behaviour”.
“Gypsy’s debt” (Çingene borcu): an unimportant debt.
“Gypsy plays Kurd dances” (Çingene çalar Kürt oynar): a place where there is a lot of commotion and noise.
“Gypsy tent” (Çingene çergesi) (metaphorically): a dirty and poor place.
“Gypsy wedding” (Çingene düğünü): a crowded and noisy meeting.
“Gypsy fight” (Çingene kavgası): verbal fight in which vulgar language is used.
“Gypsy money” (Çingene parası): coins.
“Gypsy pink” (Çingene pembesi): pink.
22. In the applicant’s opinion, these descriptions had negative, discriminatory and prejudiced meanings. The applicant further submitted that the Ministry of Education and the Turkish Language Society had amended their dictionaries at his request and asked the Language Association to correct the definitions of the aforementioned words and to remove the discriminatory expressions from the dictionary. He received no reply to his letter.
23. Subsequently, on 15 July 2002, the applicant sent a further letter to the Language Association, repeating his request. He added that he would bring a case against the Association if his request was not granted by 20 August 2002.
24. On 16 April 2003 the applicant brought proceedings in the Ankara Civil Court of General Jurisdiction against the Language Association, requesting that the aforementioned definitions and expressions be removed from the dictionary. The applicant also requested compensation for the nonpecuniary damage he had suffered on account of the expressions contained in the dictionary. He alleged in that connection that the dictionary definitions constituted an attack on his identity as a Gypsy and an insult to his personality.
25. On 26 May 2003 the representative of the Language Association made submissions to the firstinstance court. He maintained, inter alia, that the definitions and expressions contained in the dictionary were based on historical and sociological reality and that there had been no intention to humiliate or debase an ethnic group. He further submitted that the dictionary contained expressions and definitions that were commonly used in society and that there were other similar expressions in Turkish which concerned Albanians, Jews and Turks.
26. On 16 July 2003 the Ankara Civil Court dismissed the applicant’s case. It held that the definitions and expressions in the dictionary were based on historical and sociological reality and that there had been no intention to humiliate or debase an ethnic group. It further noted that there were other similar expressions in Turkish concerning other ethnic groups, which existed in dictionaries and encyclopaedias.
27. The applicant appealed. On 15 March 2004 the Court of Cassation upheld the judgment of 16 July 2003.
NON_VIOLATED_ARTICLES: 14
8


ITEMID: 001-86362
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF MÜNİRE DEMİREL v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Article 5 - Right to liberty and security
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Elisabet Fura;Ineta Ziemele;Josep Casadevall
TEXT: 4. The applicant was born in 1967 and lives in Istanbul. At the time of her application to the Court, she was incarcerated in the Kartal Special Type Prison.
5. On 4 February 1995 the applicant was taken into police custody on suspicion of membership of an illegal organisation, the Dev-Sol (Devrimci Sol – Revolutionary Left).
6. On 16 February 1995 the applicant was detained on remand.
7. On 21 February 1995 the public prosecutor at the Istanbul State Security Court filed a bill of indictment against the applicant and charged her with membership of an illegal organisation under Article 168 § 1 of the Criminal Code.
8. On 28 April 1995 the Second Chamber of the Istanbul State Security Court held the first hearing in the case (case no.1995/76).
9. On 31 October 1995 the first-instance court ordered the applicant’s release pending trial. However, the applicant was not released since on 9 October 1995 the public prosecutor at the Istanbul State Security Court had filed a new bill of indictment which resulted in a second case against the applicant before the First Chamber of the Istanbul State Security Court (case no. 1995/348). The applicant was charged with attempting to undermine the constitutional order under Article 146 of the Criminal Code.
10. On 3 September 1996 these two cases were joined under case no. 1995/348 before the First Chamber of the Istanbul State Security Court.
11. The applicant requested to be released pending trial at various times before the trial courts. The courts dismissed her requests either without giving any reason or having regard to the nature of the offence, the content of the case file and the state of evidence.
12. On 31 October 2002 the First Chamber of the Istanbul State Security Court once again dismissed the applicant’s request for release pending trial.
13. On 4 November 2002 the applicant filed an objection against the decision of 31 October 2002.
14. On the same day the Second Chamber of the Istanbul State Security Court dismissed her request.
15. On 18 February 2003 the first-instance court ordered the applicant’s release pending trial.
16. By Law no. 5190 of 16 June 2004, published in the Official Gazette on 30 June 2004, state security courts were abolished. The case against the applicant was thereby transferred to the Istanbul Assize Court. According to the information in the case file based on the latest submissions by the parties, the case is still pending before the Istanbul Assize Court.
17. The relevant domestic law and practice in force at the material time are outlined in Çobanoğlu and Budak v. Turkey, (no. 45977/99, §§ 29-30, 30 January 2007).
VIOLATED_ARTICLES: 5


ITEMID: 001-102207
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: BUZDUGAN v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
TEXT: The applicant, Mr Yuriy Kondratyevich Buzdugan, is a Russian national who was born in 1964 and lives in Yakutsk. He was represented before the Court by Ms N. Yurtayeva, a lawyer practising in Yakutsk. The Russian Government (“the Government”) were represented by Ms V. Milinchuk, the former 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 was a shareholder of a private company. During the period of his absence, a general meeting of shareholders decided to sell the company’s property. On 29 August 2000 he brought proceedings before a court of general jurisdiction against two private companies and two individuals contesting the decision of the general meeting and seeking nullity of the sale.
On 21 June 2002 the law on the entry into force of a new Code of Commercial Procedure was adopted. It expanded the jurisdiction of commercial courts and established that the cases pending before courts of general jurisdiction but falling into jurisdiction of commercial courts should be transferred to commercial courts within two weeks, provided that the plaintiff consented. If the plaintiff did not agree to the transfer, the proceedings on the case were to be discontinued.
By decision of 25 November 2002, the Yakutsk Town Court of the Yakutiya (Sakha) Republic discontinued the proceedings on the applicant’s claim. He appealed on the ground that the Town Court had not inquired whether he had consented, or not, to the transfer of the case. By decision of 16 December 2002, the Supreme Court of the Yakutiya Republic quashed the decision of 25 November 2002 and remitted the case to the first-instance court for a fresh examination.
On 20 January 2003 the Town Court held a new hearing. The applicant agreed to the transfer, the defendants objected claiming that the two-week time-limit established for the transfer had expired. The Town Court decided to transfer the case to the Commercial Court of the Yakutiya Republic.
On 26 February 2003, on appeal by the defendants, the Supreme Court of the Yakutiya Republic quashed the decision of 20 January 2003 and discontinued the proceedings on the ground that courts of general jurisdiction no longer had authority over the claim and that the time-limit for transfer had expired. The applicant was not present at the hearing as a summons had been dispatched by the court’s registry on 27 February 2003, the following day after the hearing, and had reached him on 1 March 2003. The adversary party to the proceedings attended the hearing and made oral submissions.
The applicant lodged several requests for supervisory review proceedings. On 9 March 2006 the Supreme Court of the Russian Federation quashed the decision of 26 February 2003 and remitted the case to the Supreme Court of the Yakutiya Republic for a fresh examination. It held in particular that the belated notification of the appeal hearing had deprived the applicant of an opportunity to argue his position in adversarial proceedings and, for that reason, had breached his right to a court.
On 3 May 2006 the Supreme Court of the Yakutiya Republic held a new appeal hearing that was attended by the applicant’s representative. The appeal court upheld the decision of 20 January 2003 by which the applicant’s case was to be transferred to the Commercial Court of the Yakutiya Republic for the examination on the merits.
By decision of 12 July 2007, the Commercial Court discontinued the examination of the applicant’s case on the ground that on 19 December 2006 one of the respondents, a private company, had become insolvent and that the applicant’s claim could not be determined without that participant. It is unknown whether the applicant appealed against that decision.


ITEMID: 001-68578
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF M.S. v. FINLAND
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 8. The applicant was born in 1955 and currently lives in Gambia.
9. The applicant was convicted of aggravated sexual assault on his then 15 year-old stepdaughter, by a judgment of the District Court (käräjäoikeus, tingsrätten) of Hyvinkää issued on 27 September 1996. He was sentenced to eleven months’ imprisonment and ordered to pay compensation amounting to 30,000 Finnish Marks (FIM; 5,045 euros (EUR)) to the complainant. The case was heard in camera before the District Court and the court documents were ordered to be kept secret until 27 September 2006.
10. The alleged offence (principally forced oral sex) had taken place repeatedly in the family home over a period of seven weeks beginning on 26 December 1994.
11. The pre-trial investigation of the alleged offence began when the complainant, i.e. the applicant’s stepdaughter, reported it to the police on 14 August 1996. Earlier the same month, she had mentioned the alleged offence on separate occasions to two confidantes.
12. The District Court heard the testimony of the complainant and of the aforesaid confidantes, as well as that of the defendant’s wife and of others more distantly connected with certain details pertaining to the matter. The defence disputed that the complainant and the applicant had ever been alone together in the place where the offence was alleged to have occurred. The evidence of the applicant’s wife did not support his claims in this respect.
The District Court also had before it a medical certificate issued by the physician who attended to the complainant because of an illness she had. This medical certificate charted the progress of her illness over the period from late 1992 until 1995. Although the physician was unable to draw from his observations any inference concerning the alleged offence, the District Court, according to the applicant, found that the medical certificate supported the complainant’s view in the matter.
13. On 28 October 1996 the applicant appealed to the Helsinki Court of Appeal (hovioikeus, hovrätten), annexing his wife’s statement in which she changed her position so as to support the applicant. An oral hearing was also requested.
14. On 26 November 1996, i.e. after the expiry of the time-limit for adducing written submissions to the Court of Appeal pursuant to Chapter 26, section 25 of the Code of Judicial Procedure, the applicant’s ex-wife submitted a letter to the Court of Appeal, retracting her previous submission. She explained that she had instigated divorce proceedings and could now think more clearly about the events.
15. In its judgment of 1 July 1997 the Court of Appeal, without having held an oral hearing, upheld the District Court’s judgment.
16. The applicant learned about his ex-wife’s submission of 26 November 1996 and of her changed position from the Court of Appeal’s aforementioned judgment, in which it was stated as follows:
“[The applicant’s ex-wife] has, in her statement submitted to the Court of Appeal, announced that she wants to retract her earlier written statement which was annexed to [the applicant’s] letter of appeal and which she had, in her view, signed under heavy pressure. Therefore, there is no reason to doubt that her statement given at the District Court was not accurate. It is manifestly unnecessary to request [the applicant’s] comments on the statement. ... Thus, the request to hold an oral hearing is rejected as unfounded.”
17. On 29 August 1997 the applicant applied to the Supreme Court (korkein oikeus, högsta domstolen) for leave to appeal raising, inter alia, questions concerning the overall evaluation of the evidence and maintaining that the Court of Appeal should not have accepted the withdrawal of the affidavit of 26 November 1996 without giving him an opportunity to comment on the matter. The Supreme Court refused the applicant leave to appeal on 13 November 1997.
18. After having served his sentence for his offence the applicant was expelled from Finland. The expulsion was enforced in the autumn of 1998.
19. Chapter 17, section 11(1) of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken, as in force at the relevant time; 571/1948) provided that a court of first instance may not use as evidence written affidavits, submitted for the purposes of pending or incoming proceedings, unless this is specifically provided for in the law or authorised by the court. Subsection 3 (as in force at the relevant time; 1052/1991) provided that in case a superior court of law relies on an affidavit referred to in subsection 1 and the court finds that attention must be paid to it, the person who has given the affidavit shall be heard as a witness either before the superior court or before a court of first instance designated by the superior court.
20. According to Chapter 26, section 5 of the Code of Judicial Procedure (as in force at the relevant time; 661/1978), the Court of Appeal had the possibility, on special grounds, to take into account written submissions or other documents provided by a party to the Court after the expiry of the time-limit.
21. According to Chapter 26, section 6 of the Code of Judicial Procedure (as in force at the relevant time; 661/1978), if the Court of Appeal took into account such evidence submitted after the expiry of the time-limit, the Court of Appeal had to request the parties to submit written observations unless it was manifestly unnecessary.
22. The Supreme Court issued a precedent on 31 August 2004 concerning the Court of Appeal’s obligation to communicate to the parties a statement invited on the Court of Appeal’s own motion (KKO 2004:79). Paragraph 7 of the decision reads as follows:
“[t]he appropriate proceedings in court require that the court decision is based on only such files which have been available to the parties of the legal proceedings and which they have also had the opportunity to examine. The parties accordingly have the right to be informed of the contents of a document submitted to the court, even if it according to section 24 of the Publicity Act should be kept secret, because only in this way can they be safeguarded a sufficient possibility to participate in the proceedings. The precondition to disclosure of this otherwise secret case-file to the parties is not that the court decision is based on such a file. It is already sufficient that the document may have or may have had an effect on the proceedings in the case and on the decision made in relation to it. Also in this respect, the parties as well as the court shall have the possibility to consider the significance of the case-file submitted to the court in the case.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-82321
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF VOSTOKMASH AVANTA v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of P1-1
JUDGES: Peer Lorenzen
TEXT: 4. The applicant is a Ukrainian-Kazakh company located in the city of Zaporizhzhya.
5. In 2000 the applicant instituted proceedings against the Joint Stock Company “Dniprovsky Metallurgical Kombinat” (hereinafter “the JSC”), in which the State held 98.81 % of the shares, for failure to pay under a contract for delivery of iron ore.
6. On 29 August 2000 the Arbitration Court of the Dnipropetrovs'k Region awarded the applicant UAH 1,139,560.09 in compensation against the JSC for failure to comply with the contractual obligations. The court also attached the defendant's accounts. It issued two orders in this respect: one for the recovery of property worth a total of UAH 800,541.26 and another for the recovery of the sum of UAH 339,018.83.
7. On 5 September 2000 the Bailiffs' Service initiated the enforcement proceedings.
8. Between 2000 and 2005 numerous bankruptcy proceedings were initiated against the JSC by at least eight companies:
- On 28 August 2000 by the “Kryukivsky Vagonobudivnyy Zavod” – terminated on unspecified date;
- On 7 March 2001 by the “Afilia” company – terminated on 16 October 2001 as the JSC paid the debt;
- On 19 October 2001 by the “Kristal” company – terminated on 18 March 2002 as the plaintiff failed to have the bankruptcy announcement published;
- On 19 March 2002 by the “Intermet” company – terminated on 28 January 2003 as the JSC paid the debt;
- On 29 January 2003 by the “Nezalezhnist” company – terminated on 18 September 2003 as the plaintiff withdrew his claim;
- On 22 September 2003 by the “Ukrstalkonstruktsiya” company – terminated on 27 May 2004 as the plaintiff failed to have the bankruptcy announcement published;
- On 27 May 2004 by the “Rolikon” company – terminated on 16 May 2005;
- On 17 May 2005 by the “Tsesiya” company – the bankruptcy proceeding are pending to date.
9. The respective court's rulings on opening these bankruptcy proceedings ordered suspension of the enforcement proceedings against the JSC and introduction of the moratorium on a payment of debts to its creditors.
10. Between 30 November 2000 and 18 April 2005 the Arbitration Court of the Dnipropetrovs'k Region (as of June 2001 - the Commercial Court of the Dnipropetrovs'k Region) rejected the applicant's numerous requests to initiated bankruptcy proceeding against the JSC as such proceedings were already pending upon other companies' requests.
11. On 11 July 2001 the Commercial Court of the Dnipropetrovs'k Region, upon the applicant's request, modified the modalities of enforcing the judgment of 29 August 2000. In particular, it decided to attach the debtor's property.
12. On 23 August 2001 the Bailiffs' Service resumed the enforcement proceedings and suspended them due to the application of the moratorium.
13. On 4 February 2002 the Commercial Court of the Dnipropetrovs'k Region rejected the applicant's request to initiated bankruptcy proceeding against the JSC. On 15 May 2002 and 24 April 2003 the Higher Commercial Court and the Supreme Court, respectively, rejected the applicant's cassation appeal.
14. On 6 February 2004 the State Property Fund sold the State-owned shares of the JSC to private persons. Under the terms of the sales, the latter undertook to pay all the outstanding debts of the JSC.
15. The judgment of 29 August 2000 in the applicant's favour remains unenforced.
16. The relevant domestic law is summarised in the judgment of Sokur v. Ukraine (no. 29439/02, § 17-22, 26 April 2005).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-78981
LANGUAGEISOCODE: ENG
RESPONDENT: PRT
BRANCH: GRANDCHAMBER
DATE: 2007
DOCNAME: CASE OF ANHEUSER-BUSCH INC. v. PORTUGAL
IMPORTANCE: 1
CONCLUSION: No violation of P1-1
JUDGES: András Baka;Antonella Mularoni;Christos Rozakis;Corneliu Bîrsan;Elisabeth Steiner;Giovanni Bonello;Ireneu Cabral Barreto;Jean-Paul Costa;Josep Casadevall;Karel Jungwiert;Khanlar Hajiyev;Lech Garlicki;Loukis Loucaides;Lucius Caflisch;Luzius Wildhaber;Nicolas Bratza;Peer Lorenzen;Rait Maruste;Stanislav Pavlovschi;Volodymyr Butkevych
TEXT: 12. The applicant is an American public company whose registered office is in Saint Louis, Missouri (United States of America). It produces and sells beer under the brand name “Budweiser” in a number of countries around the world.
13. The applicant company has sold beer in the United States under the “Budweiser” mark since at least 1876. It broke into the European markets in the 1980s and says that it began to sell “Budweiser” beer in Portugal in July 1986.
14. The applicant company’s decision to extend the sale of its beers to Europe led to a dispute with a Czechoslovak – now Czech – company called Budějovický Budvar. Budějovický Budvar produces a beer in the town of České Budějovice in Bohemia (Czech Republic) which is also called “Budweiser”. The term comes from Budweis, the German name for the town. The applicant company alleges that Budějovický Budvar has only been marketing beer under the “Budweiser” name since 1895, whereas Budějovický Budvar says that it has been entitled to use that appellation since 1265, when King Ottakar II of Bohemia conferred the right to produce the beer on a number of independent brewers in České Budějovice (Budweis in German). The brewers used a special technique and beers produced by this method became known by the term “Budweiser”, just as beers produced using the methods of another Czech town, Plzeň (Pilsen in German), became known as “Pilsner”.
15. According to the information before the Court, the applicant company concluded two agreements in 1911 and 1939 with Budějovický Budvar concerning the distribution and sale of “Budweiser” beer in the United States. However, these agreements did not deal with the question of the right to use the “Budweiser” name in Europe. As a result, the two companies became embroiled in a series of legal proceedings over the right to use the term “Budweiser” in various European countries, including Portugal.
16. On 19 May 1981 the applicant company applied to the National Institute for Industrial Property (NIIP) to register “Budweiser” as a trade mark on the industrial-property register. The NIIP did not grant the application immediately because it was opposed by Budějovický Budvar, which alleged that “Budweiser Bier” had been registered in its name as an appellation of origin since 1968. Budějovický Budvar had effected the registration under the terms of the Lisbon Agreement of 31 October 1958 for the Protection of Appellations of Origin and their International Registration (see paragraph 33 below).
18. The applicant company then applied to the Lisbon Court of First Instance on 10 November 1989 for an order cancelling Budějovický Budvar’s registration. A summons was served on Budějovický Budvar, but it did not file a defence. In a judgment of 8 March 1995 (which, in the absence of an appeal, became final), the Lisbon Court of First Instance granted the applicant company’s application on the ground that the product to which the registration referred, namely the beer known as “Budweiser Bier”, was not an appellation of origin or indication of source. The Court of First Instance noted that under the terms of the Lisbon Agreement of 31 October 1958 such protection was reserved to the geographical name of a country, region, or locality, which served to designate a product originating therein, the quality and characteristics of which were due exclusively or essentially to the geographical environment, including natural and human factors. “Budweiser” did not come within this category. The registration was therefore cancelled.
19. Following the cancellation of the appellation of origin, and despite the fact that Budějovický Budvar had challenged the application for registration under the opposition procedure, the NIIP registered the “Budweiser” trade mark in the applicant company’s name on 20 June 1995 in a decision that was published on 8 November 1995.
20. On 8 February 1996 Budějovický Budvar appealed to the Lisbon Court of First Instance against the NIIP’s decision on the strength of an agreement between the governments of the Portuguese Republic and the Czechoslovak Socialist Republic on the Protection of Indications of Source, Appellations of Origin and Other Geographical and Similar Designations (“the Bilateral Agreement”), which was signed in Lisbon on 10 January 1986 and which came into force on 7 March 1987, after publication in the Official Gazette. As required by law, the applicant company was invited by the court to take part in the proceedings as an interested party. In June 1996 it was served with the originating summons that had been lodged by Budějovický Budvar.
21. In a judgment of 18 July 1998, the Lisbon Court of First Instance dismissed the appeal. It found that the only intellectual property eligible for protection under Portuguese law and the Bilateral Agreement (which, according to the court was no longer in force, owing to the disappearance of one of the contracting parties, Czechoslovakia) was the “Českobudějovický Budvar” appellation of origin, not the “Budweiser” trade mark. In addition, it found that there was no risk of confusion between the appellation of origin and the applicant company’s trade mark, which the vast majority of consumers tended to think of as an American beer.
22. Budějovický Budvar appealed against that decision to the Lisbon Court of Appeal, alleging, inter alia, a breach of Article 189 § 1, sub-paragraphs (l) and (j), of the Code of Industrial Property. In a judgment of 21 October 1999, the Lisbon Court of Appeal overturned the impugned judgment and ordered the NIIP to refuse to register “Budweiser” as a trade mark. The Court of Appeal did not consider that there had been a breach of Article 189 § 1 (l) of the Code of Industrial Property, as the expression “Budweiser” was incapable of misleading the Portuguese public as to the origin of the beer concerned. However, it found that such a registration would infringe the Bilateral Agreement and, consequently, Article 189 § 1 (j) of the Code of Industrial Property. In that connection, it noted that the Bilateral Agreement had remained in force, following an exchange of notes between the Czech and Portuguese governments (see paragraph 25 below) and had been incorporated into domestic law by virtue of Article 8 of the Constitution, which contained a clause providing for international law to take effect in the Portuguese legal system.
23. The applicant company appealed on points of law to the Supreme Court alleging, inter alia, that the impugned decision contravened the Agreement of 15 April 1994 on the Trade-Related Aspects of Intellectual Property Rights (“the TRIPs Agreement”), which establishes the rule that registration confers priority, and in particular its Articles 2 and 24 § 5. The applicant company also alleged that, in any event, the protected appellation of origin “Českobudějovický Budvar” did not correspond to the German expression “Budweiser”, so that the Bilateral Agreement could not be used to challenge its application for registration. The applicant company argued that, even supposing that the German expression “Budweiser” was an accurate translation of the Czech appellation of origin, the Bilateral Agreement applied only to translations between Portuguese and Czech, not to translations into other languages. It submitted, lastly, that the Bilateral Agreement was unconstitutional owing to a formal defect in that it had been adopted by the government, not Parliament, in breach of Articles 161 and 165 of the Constitution governing parliamentary sovereignty.
24. The Supreme Court dismissed the appeal on points of law in a judgment of 23 January 2001, which came to the applicant company’s attention on 30 January 2001.
With regard to the TRIPs Agreement, the Supreme Court began by noting that the provision on which the applicant company relied required it to have acted in good faith before going on to say that the applicant company had not referred in its application for registration to any factual information that demonstrated its good faith. In any event, the effect of Article 65 of the TRIPs Agreement was that it had not become binding under Portuguese law until 1 January 1996, that is to say after the entry into force of the 1986 Bilateral Agreement. The Supreme Court therefore found that the TRIPs Agreement could not take precedence over the Bilateral Agreement.
As regards the interpretation of the Bilateral Agreement, the Supreme Court considered that the intention of the two contracting States in entering into it had incontestably been to protect through reciprocal arrangements their respective national products, including when translations of a name were used. The appellation of origin “Českobudějovický Budvar”, which became “Budweis” or “Budweiss” in German, indicated a product from the České Budějovice region in Bohemia. It was therefore protected by the Bilateral Agreement.
Lastly, the procedure whereby the Agreement had been adopted did not contravene Articles 161 and 165 of the Constitution, since it did not concern a sphere for which Parliament had exclusive competence.
25. The Agreement between the governments of the Portuguese Republic and the Czechoslovak Socialist Republic on the Protection of Indications of Source, Appellations of Origin and Other Geographical and Similar Designations was signed in Lisbon in 1986 and came into force on 7 March 1987. In a note verbale dated 21 March 1994, the Czech Minister for Foreign Affairs indicated that the Czech Republic would succeed Czechoslovakia as a contracting party to the Agreement. The Portuguese Minister for Foreign Affairs agreed thereto on behalf of the Portuguese Republic in a note verbale dated 23 May 1994.
26. Article 5 of the 1986 Agreement provides, inter alia:
“1. If a name or designation protected under this Agreement is used in commercial or industrial activities in breach of the provisions of this Agreement for products ... all judicial or administrative remedies available under the legislation of the Contracting State in which protection is sought to prevent unfair competition or the use of unlawful designations shall, by virtue of the Agreement, be deployed to restrain such use.
2. The provisions of this Article shall apply even when translations of the said names or designations are used ...”
Appendix A to the Agreement lists the designations “Českobudějovické pivo” and “Českobudějovický Budvar” among the protected appellations of origin.
27. According to the applicant company, Czechoslovakia entered into similar agreements with two other member States of the Council of Europe, these being Austria and Switzerland. The agreement between Czechoslovakia and Switzerland was signed on 16 November 1973 and came into force on 14 January 1976. The agreement between Czechoslovakia and Austria was signed on 11 June 1976 and came into force on 26 February 1981.
28. The Paris Convention of 20 March 1883 for the Protection of Industrial Property, as subsequently revised on numerous occasions (the most recent being in Stockholm on 14 July 1967, United Nations Treaty Series 1972, vol. 828, pp. 305 et seq.), sets up a Union for the protection of industrial property, an expression that encompasses industrial designs, trade marks, appellations of origin and indications of source. The purpose of the Paris Convention is to prevent discrimination against non-nationals and it lays down a number of rules of a very general nature dealing with the procedural and substantive aspects of industrial property law. It enables owners of marks to obtain protection in various member States of the Union through a single registration. It also establishes the priority rule, which grants, for a set period, a right of priority to an application for protection of an intellectual property right in one of the Contracting States over applications lodged subsequently in another Contracting State. The system introduced by this convention is administered by the World Intellectual Property Organisation (WIPO) based in Geneva (Switzerland).
29. The following provisions of the Paris Convention are of relevance to the present case:
“A. (1) Any person who has duly filed an application for ... the registration of ... an industrial design, or of a trademark, in one of the countries of the Union, or his successor in title, shall enjoy, for the purpose of filing in the other countries, a right of priority during the periods hereinafter fixed.
(2) Any filing that is equivalent to a regular national filing under the domestic legislation of any country of the Union or under bilateral or multilateral treaties concluded between countries of the Union shall be recognized as giving rise to the right of priority.
(3) By a regular national filing is meant any filing that is adequate to establish the date on which the application was filed in the country concerned, whatever may be the subsequent fate of the application.
B. Consequently, any subsequent filing in any of the other countries of the Union before the expiration of the periods referred to above shall not be invalidated by reason of any acts accomplished in the interval, in particular, another filing, ... the use of the mark, and such acts cannot give rise to any third-party right or any right of personal possession. Rights acquired by third parties before the date of the first application that serves as the basis for the right of priority are reserved in accordance with the domestic legislation of each country of the Union
C. (1) The periods of priority referred to above shall be ... six months for industrial designs and trademarks.
...”
“(1) The countries of the Union undertake, ex officio if their legislation so permits, or at the request of an interested party, to refuse or to cancel the registration, and to prohibit the use, of a trademark which constitutes a reproduction, an imitation, or a translation, liable to create confusion, of a mark considered by the competent authority of the country of registration or use to be well known in that country as being already the mark of a person entitled to the benefits of this Convention and used for identical or similar goods. These provisions shall also apply when the essential part of the mark constitutes a reproduction of any such well-known mark or an imitation liable to create confusion therewith.
...”
30. Portugal, Czechoslovakia (succeeded by the Czech Republic) and the United States of America were all Contracting Parties to the Paris Convention at the material time.
31. The Madrid Agreement of 1891 Concerning the International Registration of Marks and the Madrid Protocol of 27 June 1989 establish and govern a system for the international registration of marks that is administered by the International Bureau of the WIPO. The Madrid Agreement was revised in Brussels (1900), Washington (1911), The Hague (1925), London (1934), Nice (1957) and Stockholm (1967). The 1989 Madrid Protocol established the “Madrid Union” composed of the States Parties to the Madrid Agreement and the Contracting Parties to the Protocol. Portugal became a party to the Agreement on 31 October 1893. The United States has not ratified the Agreement. It ratified the Protocol on 2 November 2003.
32. The system set up by the Madrid Agreement is applicable to the members of the Madrid Union and affords owners of a mark a means of securing protection in various countries through a single application for registration in a national or regional registry. Under the system, the registration of an international mark has the same effect in the countries concerned as an application to register the mark or registration of the mark by the owner directly in each individual country. If the trade-mark registry of a member State does not refuse protection within a fixed period, the mark enjoys the same protection as if it had been registered directly by that registry.
33. The Lisbon Agreement for the Protection of Appellations of Origin and their International Registration was signed in Lisbon on 31 October 1958, revised in Stockholm on 14 July 1967 and amended on 28 September 1979. It enables Contracting States to request other Contracting States to protect appellations of origin of certain products, if they are recognised and protected as such in the country of origin and registered at the International Bureau of the WIPO. Both Portugal and the Czech Republic, as a successor to Czechoslovakia, are parties to this Agreement.
34. The Agreement on Trade-Related Aspects of Intellectual Property Rights was concluded in the Uruguay Round of the negotiations that resulted in the signature in April 1994 of the World Trade Organisation (WTO) Agreements in Marrakesh, which came into effect on 1 January 1995. The aim of this Agreement is to integrate the system of intellectual-property protection into the system of world-trade regulation administered by the WTO. The member States of the WTO undertake to comply with the substantive provisions of the Paris Agreement.
35. The provisions of the TRIPs Agreement of relevance to the present case are as follows:
“1. In respect of Parts II [Standards Concerning the Availability, Scope and Use of Intellectual Property Rights], III [Enforcement of Intellectual Property Rights] and IV [Acquisition and Maintenance of Intellectual Property Rights and Related Inter-Partes Procedures] of this Agreement, Members shall comply with Articles 1 through 12, and Article 19, of the Paris Convention (1967).
...”
“1. The owner of a registered trademark shall have the exclusive right to prevent all third parties not having the owner’s consent from using in the course of trade identical or similar signs for goods or services which are identical or similar to those in respect of which the trademark is registered where such use would result in a likelihood of confusion. In case of the use of an identical sign for identical goods or services, a likelihood of confusion shall be presumed. The rights described above shall not prejudice any existing prior rights, nor shall they affect the possibility of Members making rights available on the basis of use.
...”
“Members may provide limited exceptions to the rights conferred by a trademark, such as fair use of descriptive terms, provided that such exceptions take account of the legitimate interests of the owner of the trademark and of third parties.”
“Where a trademark has been applied for or registered in good faith, or where rights to a trademark have been acquired through use in good faith either:
(a) before the date of application of these provisions in that Member as defined in Part VI; or
(b) before the geographical indication is protected in its country of origin;
measures adopted to implement this Section shall not prejudice eligibility for or the validity of the registration of a trademark ... on the basis that such a trademark is identical with, or similar to, a geographical indication.”
“Subject to the provisions of paragraphs 2, 3 and 4 [which provide for longer periods], no Member shall be obliged to apply the provisions of this Agreement before the expiry of a general period of one year following the date of entry into force of the WTO Agreement.”
36. European Union law contains various instruments designed to regulate and protect intellectual property, including trade marks. The instrument of most relevance to the present case is Council Regulation (EC) No. 40/941 of 20 December 1993 on the Community trade mark, which establishes a right to a Community trade mark and confers certain rights on applicants for registration. Its aim is to promote the development, expansion and proper functioning of the internal market by enabling Community undertakings to identify their products or services in a uniform manner throughout the Union. To that end, the Office of Harmonisation for the Internal Market (OHIM) has been established (for trade marks and designs – Article 2). It is based in Alicante (Spain). Applications for registration of a Community trade mark are sent to the OHIM, which decides whether to grant or reject them. An appeal lies against its decisions to the OHIM’s Board of Appeal, and from there to the Court of First Instance of the European Communities (Articles 57-63).
37. Article 24 of the Regulation, which is entitled “The application for a Community trade mark as an object of property”, lays down that the provisions relating to Community trade marks also apply to applications for registration. These provisions include Article 17 (Transfer), Article 19 (Rights in rem), Article 20 (Levy of execution) and Article 22 (Licensing). By virtue of Article 9 § 3, an application for registration may also found a claim for compensation.
38. Finally, Article 17 § 2 of the Charter of Fundamental Rights (Article II-77 of the draft Treaty establishing a Constitution for Europe, signed on 29 October 2004, but not yet in force), which guarantees the right to property, provides: “Intellectual property shall be protected.”
39. In accordance with the relevant international instruments, the legislation of most of the member States of the Council of Europe regards registration as a corollary to the acquisition of the right to the mark. However, the vast majority of the States also regard the application for registration of the mark as conferring certain rights. In most cases, once registered the mark is deemed to have been valid since the date the application for registration was filed (system of retrospective protection through registration). The date of filing also determines priority in the system of international marks. Lastly, in some countries, an application to register a mark may itself be the subject of provisional registration, while in others it may be the subject of an assignment, security assignment or licence and (provided the mark is subsequently registered) create an entitlement to compensation in the event of fraudulent use by a third party.
40. In most countries, registration is preceded by publication of notice of the application and a procedure whereby interested parties can oppose registration in adversarial proceedings. However, in some countries, registration is automatic if the competent authority is satisfied that the application satisfies the formal and substantive requirements. In both cases, in accordance with the applicable international rules, an action to have a mark revoked or declared invalid may be brought within a set period. Such actions may be based on grounds such as valid prior title, prior application, right to international priority or a failure to use the mark for a certain period.
41. The substantive and procedural law of industrial property at the material time was contained in two successive Codes of Industrial Property, the first introduced by Legislative-Decree no. 30679 of 24 August 1940 and the second by Legislative-Decree no. 16/95 of 24 January 1995. It was the latter Code which the domestic courts applied in the instant case.
42. The 1995 Code provided a right of priority identical to that set out in the Paris Convention (Article 170). Priority was determined by reference to the date the application for registration was filed (Article 11). By virtue of Articles 29 and 30, the application for registration itself could be the subject of an assignment, with or without consideration, or a licence.
43. The other provisions of the Code of relevance to the present case read as follows.
“1. The certificate of registration shall be issued to the interested party one month after the time-limit for appealing has expired or, if an appeal has been lodged, once the final judicial decision has been delivered.
2. The certificate shall be issued to the holder or to his or her representative upon presentation of a receipt.”
“An appeal against a decision of the National Institute of Industrial Property may be lodged by the applicant, a person who has filed an opposition or any other person who might be directly affected by the decision.”
“Appeals must be lodged within three months after the date of publication of the decision in the Industrial Property Bulletin or, if earlier, the date a certified conformed copy of the decision is obtained.”
“1. Registration shall also be refused of a mark ... containing one or all of the following:
...
(j) expressions or forms that are contrary to morals, domestic or Community legislation, or public order;
(l) signs liable to mislead the public, in particular as to the nature, quality, use or geographical source of the product or service to which the mark relates;
...”
44. Appeals against a decision by the NIIP to register a mark had to be lodged with the Lisbon Civil Court (Article 2 of Legislative-Decree no. 16/95). The Code did not indicate whether they had suspensive effect.
45. In a judgment of 10 May 2001 (Colectânea de Jurisprudência [Case-law collection], 2001, vol. III, p. 85), the Lisbon Court of Appeal held that the mere filing of an application for registration conferred on the applicant a “legal expectation” (expectativa jurídica) that justified the protection of the law. Article 5 of the new Code of Industrial Property, which was introduced by Legislative-Decree no. 36/2003 of 5 March 2003 and came into force on 1 July 2003, provides “provisional protection” of the mark even prior to registration and entitles the applicant to bring an action in damages on the basis thereof.


ITEMID: 001-87123
LANGUAGEISOCODE: ENG
RESPONDENT: LVA
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: PLOTINA v. LATVIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall
TEXT: 1. The applicant, Mrs Diāna Plotiņa, is a Latvian national who was born in 1975 and lives in Jelgava District. She was represented before the Court by Mr T. Klauberg, a lawyer practising in Rīga. The Latvian Government (“the Government”) were represented by their Agent, Mrs I. Reine.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. On 5 September 1992 the applicant was staying in a café in Jelgava. On the premises there was also a certain K, who at the material time was an employee of the Security Service of the Republic of Latvia (Latvijas Republikas Drošības Dienests). K gave his gun to a private person, P, assuring him that the gun was unloaded. However, there was one bullet left in the barrel and the gun fired while P was examining it. Accidentally, the applicant was hit by the bullet. As a result of the injuries, she had to undergo several operations and rehabilitation procedures and was granted the status of a person with a second-degree disability. On the same day a prosecutor of the Jelgava Regional Public Prosecutor’s Office opened criminal proceedings in this connection.
1. Criminal proceedings against K
4. On 28 October 1992 K was charged with carelessly storing a firearm, under Article 220 of the Criminal Code. The charge was not presented to K as he did not appear at the prosecutor’s office.
5. In 1992 the Jelgava Regional Public Prosecutor’s Office decided to separate the criminal case against P from the case against K, who had left Latvia in the meantime and had gone to Belarus without the permission of the prosecutor in charge of the case. The pre-trial investigation against K was stayed and he was put on the wanted-persons list.
6. On 10 September 1997 and 23 February 1998 the applicant complained to the Presiding Prosecutor of Jelgava City about the lack of progress in the investigation of the criminal case against K.
7. On 3 March 1998 the Jelgava Police Department informed the applicant that K was not wanted by the police any longer. K had been on the wanted-persons list from 12 November 1992 to 1 March 1993. It was established that he was living in Belarus and his extradition had to be decided by the Prosecutor General.
8. On 20 April 1998 the applicant applied to the Prosecutor General, complaining about the lack of progress in the investigation of the criminal case against K and requesting him to take a decision concerning his extradition.
9. On 21 May 1998 the Prosecutor General informed the applicant that K was residing in Belarus and the Jelgava City Prosecutor’s Office had requested the Belarusian Embassy to provide information concerning his citizenship. Thereafter it could be decided whether to request the extradition of K or to transfer the proceedings to the Public Prosecutor of Belarus. In addition, the Jelgava City Prosecutor’s Office was requested to speed up the investigation.
10. On 9 April 1999, upon the applicant’s complaint, the Prosecutor General informed her that the relevant information concerning K’s citizenship had not yet been received. The Jelgava City Prosecutor’s Office was requested to speed up the investigation.
11. On 29 November 2000, upon the applicant’s complaint of 20 October 2000, the Prosecutor General informed her that the case against K had been closed on 6 April 1999 having regard to the statute of limitations. This decision was quashed and the case returned for additional investigation. The Presiding Prosecutor of Jelgava City was requested to establish whether K could be held liable as a State official because of his previous employment with the Security Service and to conduct the investigation by 20 December 2000.
12. On 27 December 2000 the Jelgava City Prosecutor’s Office informed the applicant that, in order to proceed with the criminal case against K, additional investigation was necessary.
13. On 29 March 2001 a prosecutor of the Jelgava City Prosecutor’s Office decided to close the criminal case against K. He acknowledged the accuracy of the events of 5 September 1992 and the status of K at the time, as established in the course of the pre-trial investigation. The prosecutor noted that on 8 September 1992 K had been dismissed from the Security Service for infringement of service discipline. The prosecutor considered that K had not misused his official position on 5 September 1992 and that he could not therefore be held liable in accordance with Article 162 § 2 of the Criminal Code. According to the prosecutor, K could be formally held liable under Article 220 of the Criminal Code as he, when giving his gun to P, being convinced that it was unloaded, had failed to examine the barrel. The prosecutor also established that on 24 December 1992 the registration of K’s domicile in Latvia had been deleted. The prosecutor decided to close the case, in accordance with Article 53 of the Code of Criminal Procedure, taking into consideration the facts that K had been punished at a disciplinary level, that he was residing abroad, that 8 years had passed since the incident and that – although he had committed a criminal offence provided for in the Criminal Code – he personally had not caused a degree of harm such as to justify criminal punishment.
14. On 23 November 2001 a prosecutor of the Prosecutor General’s Office quashed the decision of the prosecutor of the Jelgava City Prosecutor’s Office of 29 March 2001 as unsubstantiated, and decided to close the criminal case against K having regard to the statute of limitations. She also established that K had committed a criminal offence under Article 220 of the Criminal Code and that he could not be found liable for the criminal offence provided for in Article 162 § 2 of the Criminal Code. In the accompanying letter, the prosecutor informed the applicant that any material issues had to be dealt with in civil proceedings.
2. Criminal proceedings against P
15. On 28 October 1992 P was charged with unintentional grievous bodily harm, pursuant to Article 110 § 1 of the Criminal Code, and the charge was presented to him on the same day.
16. On 3 November 1992 the Jelgava Regional Public Prosecutor’s Office decided to separate the criminal case against P from the case against K.
17. On an unspecified date the prosecutor in charge of the investigation at the Jelgava Regional Public Prosecutor’s Office transferred the criminal case against P to the Jelgava City Court for adjudication.
18. On 2 December 1992 the applicant submitted to the Jelgava City Court a detailed list of claims for medical and rehabilitation expenses amounting to 115,511 Latvian roubles (approximately 578 Latvian lati (LVL); EUR 822). She amended the list on 1 February 1993, claiming an additional 18,400 Latvian roubles (approximately LVL 92; EUR 131) for medical and rehabilitation expenses.
19. On 3 December 1992 the Jelgava City Court found P guilty of unintentional grievous bodily harm and sentenced him to eight months’ imprisonment. The court left the applicant’s civil claim unexamined, stating that, in order to claim pecuniary damages, the applicant would have to bring civil proceedings.
20. On 14 January 1993 the Criminal Chamber of the Senate of the Supreme Court upheld the judgment of the first-instance court, which entered into force on the same day.
21. On 25 January 1993 the enforcement proceedings against P commenced. He was sent to Pārlielupes Prison to serve his sentence.
22. On 19 April 1993, following an application (protest) by the Prosecutor General in the framework of the supervisory review procedure, the Supreme Court decided to transfer the case against P for adjudication de novo to the Jelgava City Court. The court acknowledged that the first-instance court had not taken into consideration, when it sentenced P, that he had been sentenced previously for another criminal offence and he had not served the sentence at that time.
23. On 6 May 1993 P was released after having served his sentence.
24. On 10 May 1993 the Jelgava City Court received the decision of the Supreme Court of 19 April 1993.
25. On 17 May 1993, upon the decision of 19 April 1993, the Jelgava City Court scheduled a hearing for 10 June 1993. The hearing was not held as P had left Latvia in the meantime and the court decided to stay the proceedings. On 10 June 1993 the court decided to put P on the wanted-persons list and ordered a precautionary measure, namely his detention on remand.
26. On 18 June 1993 P was put on the wanted-persons list.
27. On 9 September 1993 P’s name was deleted from the list as he had been arrested in Russia.
28. On 15 September 1993 the Jelgava City and District Police informed the Jelgava City Court that P had been detained abroad for burglaries.
29. The case remained in the court without any progress until an unspecified date in 1997 when a judge of the Jelgava City Court applied to the police, inquiring about the progress of the investigation of the criminal case against P.
30. On 27 October 1997 the Jelgava Police replied to the judge of the Jelgava City Court, informing him of the events of 18 June and 9 September 1993.
31. On 3 March 1998 the Jelgava Police Department informed the applicant that P had been on the wanted-persons list from 18 June to 9 September 1993. He had been apprehended in Moscow for robbery and his stay there was being verified.
32. On 9 March 1998 the Jelgava City Court informed the applicant that it had been decided to stay proceedings in the criminal case against P, as he was wanted by the police.
33. In its decision of 23 November 2001 concerning the closure of the criminal case against K, the prosecutor of the Prosecutor General’s Office stated that at that date the criminal case against P was still pending before the Jelgava City Court as his whereabouts had not been established.
34. The Government submitted a letter from the Presiding Judge of the Jelgava City Court dated 6 September 2006, the relevant part of which reads as follows:
35. Article 5 provided that a criminal case had to be discontinued in accordance with the statute of limitations.
36. The relevant part of Article 53 provided that a public prosecutor could take a decision on the closure of a criminal case if a person had committed a criminal offence which was provided for by the Criminal Law but of which the consequences were not such as to justify criminal punishment.
37. Article 101 stipulated that a civil claim could be submitted by persons who had suffered damage as a result of a crime and, irrespective of the amount of the claim, it had to be examined jointly with a criminal case. The civil claim could be brought against the accused or a person who was vicariously liable for the acts of the accused (paragraph 1). The civil claim could be lodged upon the initiation of a criminal case, during pre-trial investigation, or with the court before the adjudication of the case (paragraph 2). If the court stayed the adjudication, the civil claim could be lodged before the beginning of the adjudication and also in the subsequent court hearing (paragraph 3). A person had the right to lodge a civil claim in civil proceedings if the claim had not been brought in criminal proceedings or if the claim had not been adjudicated owing to the discontinuance of the criminal case or a not-guilty verdict (paragraph 7).
38. Article 308 stipulated that if a civil claim was dismissed after its examination in criminal proceedings, the victim had no right to lodge the same claim in civil proceedings. If a civil claim was left without examination, the victim had the right to file the same claim in civil proceedings.
39. Under Article 110, the penalty for unintentional infliction of grievous or moderate bodily harm was up to one year’s imprisonment or a fine of up to ten minimal monthly salaries.
40. Under Article 162 § 2, the penalty for causing grievous consequences as a result of abuse of an official position was from two to eight years’ imprisonment.
41. The relevant part of Article 220 provided inter alia for imprisonment from three to five years for causing grievous consequences as a result of careless storage and carrying of firearms and ammunition which enabled a third person to use them.
42. Article 96 § 3 states that a judgment in criminal proceedings is binding in civil proceedings to the extent that it concerns the determination of the offence, for which a defendant has been sentenced, and the liability of the defendant.
43. The court must stay its proceedings if adjudication of the case is not possible prior to determination of another matter which is required to be adjudicated in accordance with criminal procedure (the relevant part of Article 214).
44. Article 1635 stipulates that every wrongful act or failure to act per se shall entitle the injured party to claim compensation from the wrongdoer, in so far as he or she may be held liable for such act.
45. Everyone has a duty to compensate for losses they have caused through their acts or failure to act (Article 1779).
46. Under Article 1895, all obligation-based rights which have not been expressly exempted from the impact of the statute of limitations, and the use of which is not by law subject to shorter terms, will lapse if the party entitled to them does not use them within a ten-year period.
5. The Instruction on the Carrying of Arms and Ammunition, as approved by Order no. 151 of the Security Service of the Republic of Latvia of 7 August 1992 (Latvijas Republikas Drošības Dienesta 7.augusta 1992.gada pavēle nr. 151 par Instrukcijas par bruņojuma un munīcijas glabāšanu apstiprināšanu)
47. The relevant part of the Instruction prohibits the handing-over of a weapon to other persons.


ITEMID: 001-5726
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: PITKEVICH v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant is a Russian national, born in 1946. She is represented before the Court by Mr V. Ryakhovskiy and Mr A. Pchelintsev, lawyers practising in Moscow. The Government are represented by Mr Pavel Laptev, their Agent.
The facts of the case, as submitted by the parties, may be summarised as follows.
Since 1987 the applicant is a member of the Living Faith Church (hereinafter referred to as the “Church”), which is part of the Russian Union of Evangelical Christian Churches.
From 1987 the applicant worked as a judge at the Noyabrsk City District Court of the Yamalo-Nenets Autonomous Area of Russia.
In February and March 1997 she participated in the election for the post of a mayor of Noyabrsk. The applicant submits that one of her opponents in the election campaign, who was eventually elected to the post of the mayor, frequently criticised her in the media as a “cultist striving for power” and referred to the Church as a “totalitarian sect”.
On 9 September 1997 the newly elected mayor sent a letter to the President of the Noyabrsk City District Court, requesting the applicant's dismissal from the judiciary on the ground that she was a “cultist”. A number of private persons also applied to the court, complaining about the applicant's performance of her judicial functions.
On 9 December 1997 the Judiciary Council of the Yamalo-Nenets Autonomous Area, a local association of judges, considered the question whether the applicant had misused her authority as a judge. The council instituted disciplinary proceedings against her, applying to the Judiciary Qualification Panel of the Yamalo-Nenets Autonomous Area to decide the question of her dismissal from the judiciary.
From 3 to 6 February 1998 the Judiciary Qualification Panel held hearings in the case. The panel consisted of four judges. Representatives of the council and a local authority were the applicant's opposing parties vis-à-vis the applicant. The panel heard the applicant and several witnesses, including officials of the Noyabrsk City Council and the Noyabrsk City District Court, who testified against her. The panel scrutinised written statements of 41 persons, including many private persons complaining about the way in which the applicant had handled their cases. The applicant asserts that she was refused to call several witnesses on her behalf.
On 6 February 1998 the Judiciary Qualification Panel dismissed the applicant from the office and removed her “third qualification grade” of a judge on the ground that she had “damaged her reputation as a judge and impaired the authority of the judiciary” within the meaning of Article 14 of the Status of Judges Act. The panel also found that she had breached the Constitution, the Freedom of Conscience and Religious Associations Act and the Code of Honour of a Judge. The panel ruled that she had misused her office to “pursue religious activities in the interests of the Church” inter alia by recruiting as Church members several officials of the Noyabrsk City District Court and certain third persons, including parties to proceedings under her examination. It was also found that the applicant had unsuccessfully attempted to enrol a number of other persons, that she had prayed publicly during court hearings, and that she had promised certain parties to proceedings a favourable outcome of their cases if they joined the Church. The Judiciary Qualification Panel noted that that had resulted in numerous challenges against the applicant, and that a number of cases had been delayed as a result.
The panel further observed that the applicant was free to choose her religion and that the Church was a legitimate organisation duly registered by the local authorities. The panel mentioned nonetheless that the Church was a “sect bearing with the label of a Christian church, [but that] it [was] not such in fact”. The Judiciary Qualification Panel further confirmed that the applicant had been entitled to run in the election of the mayor; it nonetheless criticised the applicant's campaign as promoting her religion rather than emphasising “current difficulties” of the society and the economy of the State.
The applicant appealed to the Supreme Judiciary Qualification Panel of the Russian Federation, claiming in particular that she had never misused her office in the interest of the Church or promoted her religion by using her authority as a judge.
On 21 May 1998 the Supreme Judiciary Qualification Panel, consisting of 23 judges, examined the appeal in the presence of the applicant and a representative of the Judiciary Qualification Panel of the Yamalo-Nenets Autonomous Area, who requested that the appeal be dismissed. The applicant submits that her representative was not permitted to attend the panel hearing.
During the hearing the applicant did not deny the fact that she had several times “discussed” the morality of certain parties to proceedings concerning various family rights. The panel rejected the applicant's appeal, finding that the case had been decided properly.
The applicant appealed to the Supreme Court.
The applicant submits that on 7 August 1998 the Supreme Court examined the appeal in the presence of a representative of the Judiciary Council of the Yamalo-Nenets Autonomous Area and a prosecutor, who requested the court to dismiss the applicant's appeal. The applicant was not present. The Supreme Court rejected her appeal by reference to explanations by the representative of the judicial council and the prosecutor, and the prior findings of the panels. The court ruled that the applicant had been involved in propaganda of the Church and religious intimidation of parties to proceedings under her examination. The Supreme Court decided that the applicant therefore gave rise to doubts as to impartiality and independence of the court.
The applicant states that the hearing before the Supreme Court was initially set to take place on 11 August 1998. As no notification of a change of that date was sent to her, she arrived on 11 August 1998, but found that the case had in fact been heard on 7 August 1998.
The Government state that the hearing at the Supreme Court was scheduled for and took place on 11 August 1998
The date of the Supreme Court hearing in the Supreme Court written judgment is indicated as 7 August 1998.
The Government submit that the date of the Supreme Court hearing as being 7 August 1998 was put by mistake in the judgment, which was eventually corrected.
Article 2 § 1 of the Status of Judges Act and Article 12 of the Judicial System Act provide that all judges have equal status.
Pursuant to Article 2 § 2 of the Status of Judges Act, judges can be granted “qualification grades” on the basis of their judicial experience or other professional accomplishments. The grant of a particular “qualification grade” does not affect the status of the judge vis-à-vis other judges.
There are six “qualification grades”, which are granted or removed on the basis of decisions of judiciary qualification panels established under the Status of Judges Act, the Judiciary Qualification Panels Ordinance and the Qualification Assessment of Judges Ordinance (also see below).
Article 19 of the Status of Judges Act provides for special supplementary payments to the salary or pension of the judge on the basis of his “qualification grade”.
Article 14 of the Constitution separates churches from the State.
Articles 3 and 4 of the Freedom of Conscience and Religious Associations Act prohibit State officials from using their official powers to promote religion.
Pursuant to Article 3 of the Code of Honour of a Judge, the work of a judge in administering justice should prevail over his other activities.
Article 3 § 2 of the Status of Judges Act provides that a judge should avoid engaging in any activities that can impair the authority of the judiciary, damage his reputation as a judge or call into question his impartiality. Paragraph 3 of the above provision states that a judge cannot occupy a position of an elected representative, belong to political parties or movements, be involved in business activities, receive salary in connection with his other activities, let alone academic, scientific and creative work.
Article 14 § 1 (9) of the above Act provides for the dismissal of a judge who has acted in a way “damaging his reputation as a judge and impairing the authority of the judiciary”.
Under Articles 14 § 2 and 18 § 1 of the Status of Judges Act, the questions of dismissal of a judge and removal of his “qualification grade” are decided by a judiciary qualification panel. The decision of the panel, insofar as it concerns dismissal, can be appealed to the Supreme Judiciary Qualification Panel, and from there - to the Supreme Court. Pursuant to Article 26 § 4 of the Judiciary Qualification Panels Ordinance, the decision of a panel to remove a “qualification grade” is not subject to appeal.
Under Articles 1-3 and 9 of the Judiciary Qualification Panels Ordinance, judiciary qualification panels work under the authority of regional and higher courts, and are elected for a term of three years by a secret vote of judges during the meetings of professional judicial associations. Article 6 of the Ordinance states that only judges can be members of panels.
Pursuant to Article 15 of the Ordinance, any application concerning a particular judge lodged by a State authority or a private person shall be scrutinised provided that the panel is competent to examine the questions raised therein. Following such an application, a panel president or his deputy opens an inquiry into the facts alleged, draws up the list of persons to be invited to the panel hearing, and sets the date of that hearing in accordance with Article 16 of the Ordinance. The judge concerned is entitled to have access to all the material collected for the hearing, and to submit his observations in reply before the hearing pursuant to Article 17. Under Article 19 of the Ordinance, the panel president, with the accord of the panel members, decides on the procedure for the hearing. A prosecuting or other legal authority is entitled to present its own opinion on the case pursuant to Article 20 of the Ordinance.
Article 11 of the Code of Civil Procedure provides that higher courts conduct “supervisory review” (надзор) of the activities of the lower courts. This means, according to Articles 319, 320 and 327, that specific senior judicial officers, at any time, by request of a person or of their own motion, may lodge with a higher court a “special appeal” (протест) against the final decision of a lower court on all questions of fact and law. The “supervisory review” procedure has to be distinguished from the proceedings whereby a case may be reviewed on the ground of new or newly established facts (Articles 333 - 337).
Following an amendment to the Code of Civil Procedure and the Judiciary System Act of 4 January 1999 (in force since 6 January 1999), judgments of the Supreme Court taken at first instance can be appealed against to the Appeal Chamber of the Supreme Court, under Article 105 of the Code of Civil Procedure.


ITEMID: 001-4834
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: KANGASNIEMI v. FINLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Georg Ress
TEXT: The applicant is a Swedish citizen, born in 1944 and living in Huddinge, Sweden. She is represented before the Court by Mr Wäinö Pietikäinen, chairman of an association for patients.
A.
Since the end of the 1980’s the applicant has suffered from various health problems, e.g. arrhythmia, blood pressure, headaches, and pain in her back and neck. In 1991, she sought compensation from her insurance company on the basis of a voluntary insurance claiming her problems were related to her work as a dentist.
On 12 July 1991, the insurance company refused her claim for compensation. The Board for Accident Compensation (tapaturmalautakunta, olycksfallsnämnd) and the Insurance Court (vakuutusoikeus, försäkringsdomstol) rejected her appeals on 18 December 1991 and 6 October 1992 respectively. The Supreme Court (korkein oikeus, högsta domstolen) refused her leave to appeal on 30 August 1993. These proceedings are later referred to as “the first set of proceedings”.
After receiving new medical statements, the insurance company reviewed the applicant’s claim for compensation and, on 12 February 1996, upheld its previous refusal.
The applicant appealed to the Board for Accident Compensation, which rejected the appeal on 14 August 1996. The proceedings before the Board were conducted in writing.
The applicant appealed to the Insurance Court requesting, inter alia, an oral hearing. The Insurance Court received a statement from the insurance company and the applicant submitted her observations to it. On 7 October 1997, the Insurance Court rejected the appeal without holding an oral hearing. It reasoned its refusal to hold an oral hearing as follows:
(translation from Swedish)
The applicant sought leave to appeal against the Insurance Court’s decision from the Supreme Court arguing, inter alia, that the Insurance Court had no legal ground for its refusal to hold an oral hearing. Furthermore, she claimed that the Supreme Court should wait for the County Administrative Board’s decision on her complaint before deciding the case. On 22 June 1998, the Supreme Court refused the applicant leave to appeal. The latter proceedings are later referred to as “the second set of proceedings”.
B. Relevant domestic law
According to Section 9, subsection 1, of the Insurance Court Act (laki vakuutusoikeudesta, lagen om försäkringsdomstolen 14/58) as in force at the relevant time, the proceedings before the Insurance Court were written. However, the Insurance Court could for special reasons decide to hold an oral hearing where the parties, witnesses and experts could be heard. It could also request that evidence be taken by an ordinary court of first instance.
According to Section 53(b) of the Accident Insurance Act (tapaturmavakuutuslaki, lagen on olycksfallsförsäkring 608/48), one who wants to appeal against the Insurance Court’s decision to the Supreme Court must seek leave to appeal, which can be granted under the provisions set out in Chapter 30, Section 3, of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalk).
According to Chapter 30, Section 20, of the Code of Judicial Procedure, the Supreme Court may, when necessary, hold an oral hearing, where the parties, witnesses and experts may be heard, and other evidence may be taken.


ITEMID: 001-106614
LANGUAGEISOCODE: ENG
RESPONDENT: LVA
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: PUNDURS v. LATVIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Nona Tsotsoria
TEXT: 1. The applicant, Mr Aldis Pundurs, is a Latvian national who was born in 1965 and lives in Rīga. The Latvian Government (“the Government”) were represented by their Agent, Mrs I. Reine.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. On 8 August 2001 the applicant was hit by a car while he was riding his bicycle. He was taken to hospital, where he was diagnosed with contusions of the head and jaw. He was released on the same day.
4. On 7 September 2001 the Traffic Police Division of the Rīga City Main Police Department (Rīgas pilsētas Galvenās Policijas Pārvaldes Ceļu Policijas nodaļa) (hereinafter “the traffic police”) decided not to initiate criminal proceedings against the driver of the car. It was established that a passenger, to whom the driver was giving a lift, unexpectedly opened the door of the car, and the applicant hit the door. The identity of the passenger was not established.
5. The applicant appealed against this decision to the Rīga City Transport Public Prosecutor’s office (Rīgas autotransporta prokuratūra), alleging that the driver knew the passenger and thus could identify him. The applicant also complained that he had sustained health problems in the accident.
6. On 28 September 2001 a prosecutor attached to the Rīga City Transport Public Prosecutor’s office quashed the earlier decision and returned the case for additional investigation. Another decision not to institute criminal proceedings was adopted on 15 April 2002, but this too was later quashed. Various forensic medical and technical expert assessments were carried out throughout the investigation.
7. On 4 June 2002 a prosecutor of the Prosecutor General’s office informed the applicant that, according to the provisions of the Criminal Procedure Code, he could not have access to the decisions regarding the expert assessments.
8. On 11 July 2002 the traffic police informed the applicant that the passenger had been identified.
9. On 19 August 2002 the traffic police adopted a decision not to institute criminal proceedings and informed the applicant about it. The decision described in detail the circumstances of the accident and referred to the outcomes of the forensic medical and technical assessments. It concluded that the passenger had violated section 129 (2) of the Administrative Offences Code (see Relevant domestic law below), and that his wrongful act was the cause of the traffic accident. It also referred to the fact that the applicant had sustained minor injuries. The passenger was administratively fined in the amount of about 20 euros (EUR).
10. After examining the applicant’s appeals in which he contested the decision not to institute criminal proceedings on 3 and 22 October 2002 the Office of the Prosecutor General upheld the earlier decision.
11. On 21 October 2002 the applicant asked the Prosecutor General to inform him where and when he could get acquainted with the materials in the file relating to the traffic accident. On 22 November 2002 the applicant was informed that pursuant to section 261 of the Administrative Offence Code he has to submit an identical request to the investigating authority.
12. Pursuant to Section 47, circumstances which have to be proved during pre-trial investigation include, inter alia, the amount of pecuniary loss suffered as a result of a crime.
13. Section 101 stipulates that a civil claim may be submitted by persons who have suffered damage as a result of a crime. A civil claim may be brought against an accused or against a person who is vicariously liable for the acts of the accused. A person shall have the right to lodge a civil claim by way of civil proceedings if a claim has not been brought in criminal proceedings.
14. According to Section 140, a person who has suffered damage as a result of a crime can be declared a civil party during pre-trial investigation.
15. Section 308 stipulates that if a civil claim is left unexamined, a victim shall have the right to file the same claim by way of civil proceedings.
16. Section 222 provides that a complaint about public prosecutors’ actions can be submitted to a hierarchically superior prosecutor.
17. According to section 7 § 1, civil claims for compensation for pecuniary or non-pecuniary damage in criminal matters may be brought in accordance with the procedures prescribed by the Criminal Procedure Code.
18. Section 1635 stipulates that every wrongful act or failure to act per se shall give the person who has suffered damage thereby the right to claim compensation from the wrongdoer, in so far as he or she may be held liable for that act.
19. Other relevant provisions of the Civil Law applicable at the material time, and other relevant matters are to be found in Zavoloka v. Latvia, no. 58447/00, §§ 15-19, 7 July 2009.
20. According to section 129, pedestrians who have violated traffic rules and caused a traffic accident or minor injuries to a victim shall be fined in an amount from 10 to 50 lati (LVL).
21. According to section 261, a victim is a person to whom non-pecuniary, physical or material harm has been caused by an administrative violation. The victim has the right to, inter alia, be familiarised with all the materials in the proceedings, to submit requests and to appeal against the decision in administrative offence proceedings.


ITEMID: 001-60518
LANGUAGEISOCODE: ENG
RESPONDENT: CYP
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF AZINAS v. CYPRUS
IMPORTANCE: 3
CONCLUSION: Violation of P1-1;Just satisfaction reserved
JUDGES: Georg Ress
TEXT: 8. From the establishment of the Republic of Cyprus in 1960 and up to his dismissal from the Public Service, the applicant worked as Governor of the Department of Co-operative Development of the Public Service in Nicosia. On 28 July 1982 the Public Service Commission instituted disciplinary proceedings against him and decided to dismiss him retrospectively due to the fact that on 8 April 1981 he was found guilty by the District Court of Nicosia of stealing, breach of trust and abuse of authority. He was sentenced to 18 months’ imprisonment. The applicant’s appeal against both conviction and sentence was dismissed by the Supreme Court on 16 October 1981.
9. The Public Service Commission held that the applicant had managed the resources of the above-mentioned Department as if it were his private property and spent them for purposes other than those of the Department. The disciplinary sentence of dismissal also resulted in the forfeiture of the applicant’s retirement benefits including his pension, according to section 79(7) of the Public Service Law No. 33/67, as from the date of his conviction by the District Court.
10. On 8 October 1982 the applicant filed an application with the Supreme Court requesting that the decision to dismiss him from the public service be declared null and void. The applicant’s main argument was that the decision had been taken in excess or abuse of power in that the sanction of dismissal, with the consequent forfeiture of retirement benefits, was disproportionate to the gravity of the offence. He also contended that the forfeiture was contrary to Article 12(2) of the Constitution, which guarantees the right not to be tried or punished twice. He alleged that the forfeiture of his pension rights and the sentence of imprisonment amounted to a double punishment for the same act.
11. On 21 December 1982 (according to the Government) or 5 January 1983 (according to the applicant), the Government filed their objections. On 19 April 1984 (according to the Government) or 15 September 1984 (according to the applicant), the applicant filed his observations, to which the Government replied on 10 December 1984 (according to them) or 19 December 1984 (according to the applicant). From then on, the hearing of the case was repeatedly adjourned and was only completed on 9 March 1988. Judgment was delivered on 12 June 1991, by which the Supreme Court rejected the applicant’s application and confirmed the Public Service Commission’s decision.
12. The Supreme Court stated that it could neither control the severity of the sentence imposed by a disciplinary organ, except if the latter exceeded the limits of its margin of appreciation, nor the manner in which the organ assessed the facts of the case. It held that the discretion of the Public Service Commission only concerned the nature of the sanction, the loss of the retirement benefits being the normal consequence of the particular sanction imposed by the Commission. As for the right not to be punished twice for the same act, the Supreme Court held that “criminal and disciplinary proceedings may be pursued simultaneously or in succession in respect of the same conduct, in recognition of the fact that the two proceedings are designed to serve separate and distinct purposes” and that “the same act may constitute both a criminal and a disciplinary offence; that this is so, is no obstacle to the institution of disciplinary proceedings, nor a conviction upon a disciplinary charge similar in nature to an offence created by the Criminal Code ...”.
13. On 18 July 1991 the applicant appealed on points of law to the Supreme Court sitting as an appeal court. Five grounds were included in the notice of appeal. The fifth ground challenged the finding of the Supreme Court, sitting as a first instance court, that the loss of retirement benefits was not contrary to Articles 23(1) and 23(2) of the Constitution.
14. The hearing was adjourned several times. It was fixed for 12 January 1996, but as the applicant appointed a new lawyer, a total of four adjournments were granted from that date until 18 November 1996, at the request of counsel for both sides.
15. On 18 November 1996 the applicant’s lawyer informed the Supreme Court that negotiations for a settlement of the applicant’s claims concerning his retirement benefits were in progress and invited the court to adjourn the case pending their outcome. The hearing was thus fixed for 3 February 1997.
16. However, on 6 December 1996, the applicant filed an application for amendment of his grounds of appeal. The Supreme Court granted the application on 17 January 1997 and directed for the amended notice of appeal to be filed within ten days.
17. From 3 February 1997 to 14 September 1998 the applicant requested and obtained six further adjournments pending the above-mentioned negotiations: on 9 May 1997, 6 October 1997, 4 November 1997, 9 January 1998, 10 March 1998 and 30 April 1998.
18. On 14 September 1998 in his opening address, the applicant’s lawyer stated that he would only deal with grounds 3 and 4 of the appeal, which also covered ground 5. In those grounds the applicant had challenged the findings that his dismissal and consequent forfeiture of his pension rights were not disproportionate to the gravity of the offence, and that the Public Service Commission had acted lawfully, within the limits of its discretion, in imposing these sanctions. He conceded the withdrawal of the other grounds of appeal. Subsequently, the lawyer declared that “he did not raise any other issue on this point (forfeiture of pension rights) as a separate and autonomous right because it was a very big issue”. However, it transpires from the pleadings that the applicant’s lawyer expressly stated that he would deal with grounds 3 and 4, which also implied ground 5. Ground 5 read as follows: “The finding of the First Instance Court that the loss of the applicant’s retirement benefits is not contrary to Articles 23(1) and (2) of the Constitution is erroneous.” Judgment was reserved.
19. In the meantime, one of the members of the bench hearing the case was appointed Minister of Defence, and the Supreme Court decided to reopen the proceedings. On 8 March 1999 the hearing was adjourned until 31 March 1999 due to a change in the composition of the court and then until 29 April 1999 because one of the judges was absent on sick-leave. On 21 April 1999 the applicant’s lawyer applied for a further adjournment due to another engagement. The hearing was fixed for 14 May 1999 but was adjourned again until 17 June 1999, owing to the absence of one member of the bench, and then until 9 July 1999 at the request of the applicant. Thus the appeal was heard for a second time on 9 July 1999 and judgment delivered on 20 July 1999, dismissing the appeal.
20. According to the Government, the Supreme Court invited the applicant’s lawyer to re-confirm his position, recorded during the first hearing, that all grounds of appeal, except ground 3 and 4 had been withdrawn, which he did. It was also confirmed that no issue as to the constitutionality of the provisions of the Public Service Law regarding the loss of retirement benefits was raised, but rather that this point was raised only in support of the applicant’s main allegation that, although the Public Service Commission had considered a number of mitigating factors, the impostion of the ultimate disciplinary sanction of dismissal upon the applicant was in flagrant violation of the principle of proportionality and an abuse of the limits of their discretion.
21. At the material time, section 79 of Public Service Law No. 33/67 read as follows:
“1. In accordance with the present law, the following disciplinary penalties may be imposed: ...
1 reprimand
2 severe reprimand
3 disciplinary transfer
4 interruption of annual salary increase
5 suspension of annual salary increase
6 pecuniary penalty which cannot exceed three months’ salary
7 reduction in the salary scales
8 reduction to the ranks
9 compulsory retirement
10 dismissal. ...
7. Dismissal entails the loss of all retirement benefits.”
22. A revised version of section 79(7) of the Law is today in force in Cyprus and provides as follows:
“Dismissal entails the loss of all retirement benefits. It is understood that a pension is paid to the wife or dependent children, if any, of a public servant who was dismissed as though he had died on the date of his dismissal and which will be calculated on the basis of his actual years of service.”
23. Under the provisions of the Public Service Law, the duties and responsibilities of posts in the public service are stipulated in the relevant “Schemes of Service”, approved by the Council of Ministers. According to the Scheme of Service for the post of the Governor of the Department of Co-operative Development held by the applicant, the duties and responsibilities were as follows:
“Management of the Department of Co-operative Development and responsibility for the promotion, development and orderly operation of the co-opertative movement in the island. Exercise of the power and duties provided by the relevant laws and regulations. Advisor to the Minister of Finance on co-operative matters. Represents the Co-operative Department in various committees and bodies. Performance of any other duties which may be assigned to him.”
24. A public servant’s entitlement to a pension is governed by the Republic’s Pensions Law, Cap. 311. Section 6 of this Law, which was in force at the time of the applicant’s dismissal, provided that no pension, gratuity or other allowance shall be granted except upon retirement from the public service in one of the cases specifically enumerated. Section 6 (f) referred to “the case of termination of employment in the public interest as provided in this Law”, that is section 7 of the Law, which in turn provided as follows:
25. Article 166 § 1 of the Constitution reads as follows:
“There shall be charged on the Consolidated Fund, in addition to any grant, remuneration or other moneys charged by any other provision of this Constitution or law
(a) all pensions and gratuities for which the Republic is liable ...”