ITEMID: 001-57891
LANGUAGEISOCODE: ENG
RESPONDENT: DNK
BRANCH: GRANDCHAMBER
DATE: 1994
DOCNAME: CASE OF JERSILD v. DENMARK
IMPORTANCE: 2
CONCLUSION: Violation of Art. 10;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
JUDGES: C. Russo;N. Valticos;R. Pekkanen
TEXT: 9. Mr Jens Olaf Jersild, a Danish national, is a journalist and lives in Copenhagen. He was at the time of the events giving rise to the present case, and still is, employed by Danmarks Radio (Danish Broadcasting Corporation, which broadcasts not only radio but also television programmes), assigned to its Sunday News Magazine (Søndagsavisen). The latter is known as a serious television programme intended for a well-informed audience, dealing with a wide range of social and political issues, including xenophobia, immigration and refugees.
10. On 31 May 1985 the newspaper Information published an article describing the racist attitudes of members of a group of young people, calling themselves "the Greenjackets" ("grønjakkerne"), at Østerbro in Copenhagen. In the light of this article, the editors of the Sunday News Magazine decided to produce a documentary on the Greenjackets. Subsequently the applicant contacted representatives of the group, inviting three of them together with Mr Per Axholt, a social worker employed at the local youth centre, to take part in a television interview. During the interview, which was conducted by the applicant, the three Greenjackets made abusive and derogatory remarks about immigrants and ethnic groups in Denmark. It lasted between five and six hours, of which between two and two and a half hours were video-recorded. Danmarks Radio paid the interviewees fees in accordance with its usual practice.
11. The applicant subsequently edited and cut the film of the interview down to a few minutes. On 21 July 1985 this was broadcast by Danmarks Radio as a part of the Sunday News Magazine. The programme consisted of a variety of items, for instance on the martial law in South Africa, on the debate on profit-sharing in Denmark and on the late German writer Heinrich Böll. The transcript of the Greenjackets item reads as follows [(I): TV presenter; (A): the applicant; (G): one or other of the Greenjackets]:
(I) "In recent years, a great deal has been said about racism in Denmark. The papers are currently publishing stories about distrust and resentment directed against minorities. Who are the people who hate the minorities? Where do they come from? What is their mentality like? Mr Jens Olaf Jersild has visited a group of extremist youths at Østerbro in Copenhagen.
(A) The flag on the wall is the flag of the Southern States from the American Civil War, but today it is also the symbol of racism, the symbol of the American movement, the Ku Klux Klan, and it shows what Lille Steen, Henrik and Nisse are.
Are you a racist?
(G) Yes, that’s what I regard myself as. It’s good being a racist. We believe Denmark is for the Danes.
(A) Henrik, Lille Steen and all the others are members of a group of young people who live in Studsgårdsgade, called STUDSEN, in Østerbro in Copenhagen. It is public housing, a lot of the inhabitants are unemployed and on social security; the crime rate is high. Some of the young people in this neighbourhood have already been involved in criminal activities and have already been convicted.
(G) It was an ordinary armed robbery at a petrol station.
(A) What did you do?
(G) Nothing. I just ran into a petrol station with a ... gun and made them give me some money. Then I ran out again. That’s all.
(A) What about you, what happened?
(G) I don’t wish to discuss that further.
(A) But, was it violence?
(G) Yes.
(A) You have just come out of ... you have been arrested, what were you arrested for?
(G) Street violence.
(A) What happened?
(G) I had a little fight with the police together with some friends.
(A) Does that happen often?
(G) Yes, out here it does.
(A) All in all, there are 20-25 young people from STUDSEN in the same group.
They meet not far away from the public housing area near some old houses which are to be torn down. They meet here to reaffirm among other things their racism, their hatred of immigrants and their support for the Ku Klux Klan.
(G) The Ku Klux Klan, that’s something that comes from the States in the old days during - you know - the civil war and things like that, because the Northern States wanted that the niggers should be free human beings, man, they are not human beings, they are animals, right, it’s completely wrong, man, the things that happened. People should be allowed to keep slaves, I think so anyway.
(A) Because blacks are not human beings?
(G) No, you can also see that from their body structure, man, big flat noses, with cauliflower ears etc., man. Broad heads and very broad bodies, man, hairy, you are looking at a gorilla and compare it with an ape, man, then it is the same [behaviour], man, it’s the same movements, long arms, man, long fingers etc., long feet.
(A) A lot of people are saying something different. There are a lot of people who say, but ...
(G) Just take a picture of a gorilla, man, and then look at a nigger, it’s the same body structure and everything, man, flat forehead and all kinds of things.
(A) There are many blacks, for example in the USA, who have important jobs.
(G) Of course, there is always someone who wants to show off, as if they are better than the white man, but in the long run, it’s the white man who is better.
(A) What does Ku Klux Klan mean to you?
(G) It means a great deal, because I think what they do is right. A nigger is not a human being, it’s an animal, that goes for all the other foreign workers as well, Turks, Yugoslavs and whatever they are called.
(A) Henrik is 19 years old and on welfare. He lives in a rented room in Studsgårdsgade. Henrik is one of the strongest supporters of the Klan, and he hates the foreign workers, ‘Perkere’ [a very derogatory word in Danish for immigrant workers].
(G) They come up here, man, and sponge on our society. But we, we have enough problems in getting our social benefits, man, they just get it. Fuck, we can argue with those idiots up there at the social benefit office to get our money, man, they just get it, man, they are the first on the housing list, they get better flats than us, man, and some of our friends who have children, man, they are living in the worst slum, man, they can’t even get a shower in their flat, man, then those ‘Perkere’-families, man, go up there with seven kids, man, and they just get an expensive flat, right there and then. They get everything paid, and things like that, that can’t be right, man, Denmark is for the Danes, right?
It is the fact that they are ‘Perkere’, that’s what we don’t like, right, and we don’t like their mentality - I mean they can damn well, I mean ... what’s it called ... I mean if they feel like speaking Russian in their homes, right, then it’s okay, but what we don’t like is when they walk around in those Zimbabwe-clothes and then speak this hula-hula language in the street, and if you ask them something or if you get into one of their taxis then they say: I don’t know where it is, you give directions right.
(A) Is it not so that perhaps you are a bit envious that some of the ‘Perkere’ as you call them have their own shops, and cars, they can make ends ...
(G) It’s drugs they are selling, man, half of the prison population in ‘Vestre’ are in there because of drugs, man, half of those in Vestre prison anyway, they are the people who are serving time for dealing drugs or something similar.
They are in there, all the ‘Perkere’, because of drugs, right. [That] must be enough, what’s it called, there should not be drugs here in this country, but if it really has to be smuggled in, I think we should do it ourselves, I mean, I think it’s unfair that those foreigners come up here to ... what’s it called ... make Denmark more drug dependent and things like that.
We have painted their doors and hoped that they would get fed up with it, so that they would soon leave, and jumped on their cars and thrown paint in their faces when they were lying in bed sleeping.
(A) What was it you did with that paint - why paint?
(G) Because it was white paint, I think that suited them well, that was the intended effect.
(A) You threw paint through the windows of an immigrant family?
(G) Yes.
(A) What happened?
(G) He just got it in his face, that’s all. Well, I think he woke up, and then he came out and shouted something in his hula-hula language.
(A) Did he report it to the police?
(G) I don’t know if he did, I mean, he won’t get anywhere by doing that.
(A) Why not?
(G) I don’t know, it’s just kid’s stuff, like other people throwing water in people’s faces, he got paint in his. They can’t make anything out of that.
---
(A) Per Axholt, known as ‘Pax’ [(P)], is employed in the youth centre in Studsgårdsgade. He has worked there for several years, but many give up a lot sooner because of the tough environment. Per Axholt feels that the reasons why the young people are persecuting the immigrants is that they are themselves powerless and disappointed.
What do you think they would say that they want, if you asked them?
(P) Just what you and I want. Some control over their lives, work which may be considered decent and which they like, a reasonable economic situation, a reasonably functioning family, a wife or a husband and some children, a reasonable middle-class life such as you and I have.
(A) They do many things which are sure to prevent them from getting it.
(P) That is correct.
(A) Why do you think they do this?
(P) Because they have nothing better to do. They have been told over a long period that the means by which to achieve success is money. They won’t be able to get money legitimately, so often they try to obtain it through criminal activity. Sometimes they succeed, sometimes not, and that’s why we see a lot of young people in that situation go to prison, because it doesn’t work.
---
(A) How old were you when you started your criminal activities?
(G) I don’t know, about 14 I guess.
(A) What did you do?
(G) The first time, I can’t remember, I don’t know, burglary.
(A) Do you have what one might call a criminal career?
(G) I don’t know if you can call it that.
(A) You committed your first crime when you were 14.
(G) Well, you can put it that way, I mean, if that is a criminal career. If you have been involved in crime since the age of 15 onwards, then I guess you can say I’ve had a criminal career.
(A) Will you tell me about some of the things you have done?
(G) No, not really. It’s been the same over and over again. There has been pinching of videos, where the ‘Perkere’ have been our customers, so they have money. If people want to be out here and have a nice time and be racists and drink beer, and have fun, then it’s quite obvious you don’t want to sit in the slammer.
(A) But is the threat of imprisonment something that really deters people from doing something illegal?
(G) No, it’s not prison, that doesn’t frighten people.
(A) Is that why you hear stories about people from out here fighting with knives etc., night after night. Is the reason for this the fact that they are not afraid of the police getting hold of them?
(G) Yes, nothing really comes of it, I mean, there are no bad consequences, so probably that’s why. For instance fights and stabbings and smashing up things ... If you really get into the joint it would be such a ridiculously small sentence, so it would be, I mean ... usually we are released the next day. Last time we caused some trouble over at the pub, they let us out the next morning. Nothing really comes of it. It doesn’t discourage us, but there were five of us, who just came out and then we had a celebration for the last guy, who came out yesterday, they probably don’t want to go in again for some time so they probably won’t commit big crimes again.
(A) You would like to move back to Studsgårdsgade where you grew up, but we know for sure that it’s an environment with a high crime rate. Would you like your child to grow up like you?
(G) No, and I don’t think she will. Firstly, because she is a girl, statistics show that the risk is not that high, I mean they probably don’t do it, but you don’t have to be a criminal because you live in an environment with a high crime rate. I just wouldn’t accept it, if she was mugging old women and stealing their handbags.
(A) What if she was among those beating up the immigrants etc. What then?
(G) That would be okay. I wouldn’t have anything against that.
---
(I) We will have to see if the mentality of this family changes in the next generation. Finally, we would like to say that groups of young people like this one in STUDSEN at Østerbro, have been formed elsewhere in Copenhagen."
12. Following the programme no complaints were made to the Radio Council, which had competence in such matters, or to Danmarks Radio but the Bishop of Ålborg complained to the Minister of Justice. After undertaking investigations the Public Prosecutor instituted criminal proceedings in the City Court of Copenhagen (Københavns Byret) against the three youths interviewed by the applicant, charging them with a violation of Article 266 (b) of the Penal Code (straffeloven) (see paragraph 19 below) for having made the statements cited below:
"... the Northern States wanted that the niggers should be free human beings, man, they are not human beings, they are animals."
"Just take a picture of a gorilla, man, and then look at a nigger, it’s the same body structure and everything, man, flat forehead and all kinds of things."
"A nigger is not a human being, it’s an animal, that goes for all the other foreign workers as well, Turks, Yugoslavs and whatever they are called."
"It is the fact that they are ‘Perkere’, that’s what we don’t like, right, and we don’t like their mentality ... what we don’t like is when they walk around in those Zimbabwe-clothes and then speak this hula-hula language in the street ..."
"It’s drugs they are selling, man, half of the prison population in ‘Vestre’ are in there because of drugs ... they are the people who are serving time for dealing drugs ..."
"They are in there, all the ‘Perkere’, because of drugs ..."
The applicant was charged, under Article 266 (b) in conjunction with Article 23 (see paragraph 19 below), with aiding and abetting the three youths; the same charge was brought against the head of the news section of Danmarks Radio, Mr Lasse Jensen.
13. In the City Court counsel for the applicant and Mr Jensen called for their acquittal. He argued that the conduct of the applicant and Mr Jensen could in no way be compared to that of the other three defendants, with whose views they did not sympathise. They sought merely to provide a realistic picture of a social problem; in fact the programme only provoked resentment and aroused pity in respect of the three other defendants, who had exposed themselves to ridicule on their own terms. Accordingly, it was by no means the intention of Danmarks Radio to persuade others to subscribe to the same views as the Greenjackets, rather the contrary. Under the relevant law a distinction had to be drawn between the persons who made the statements and the programme editors, the latter enjoying a special freedom of expression. Having at that time a broadcasting monopoly, Danmarks Radio was under a duty to impart all opinions of public interest in a manner that reflected the speaker’s way of expressing himself. The public also had an interest in being informed of notoriously bad social attitudes, even those which were unpleasant. The programme was broadcast in the context of a public debate which had resulted in press comments, for instance in Information, and was simply an honest report on the realities of the youths in question. Counsel, referring inter alia to the above-mentioned article in Information, also pointed to the fact that no consistent prosecution policy had been followed in cases of this nature.
14. On 24 April 1987 the City Court convicted the three youths, one of them for having stated that "niggers" and "foreign workers" were "animals", and two of them for their assertions in relation to drugs and "Perkere". The applicant was convicted of aiding and abetting them, as was Mr Jensen, in his capacity as programme controller; they were sentenced to pay day-fines (dagsbøder) totalling 1,000 and 2,000 Danish kroner, respectively, or alternatively to five days’ imprisonment (hæfte).
As regards the applicant, the City Court found that, following the article in Information of 31 May 1985, he had visited the Greenjackets and after a conversation with Mr Axholt, amongst others, agreed that the three youths should participate in a television programme. The object of the programme had been to demonstrate the attitude of the Greenjackets to the racism at Østerbro, previously mentioned in the article in Information, and to show their social background. Accordingly, so the City Court held, the applicant had himself taken the initiative of making the television programme and, further, he had been well aware in advance that discriminatory statements of a racist nature were likely to be made during the interview. The interview had lasted several hours, during which beer, partly paid for by Danmarks Radio, was consumed. In this connection the applicant had encouraged the Greenjackets to express their racist views, which, in so far as they were broadcast on television, in itself constituted a breach of Article 266 (b) of the Penal Code. The statements were broadcast without any counterbalancing comments, after the recordings had been edited by the applicant. He was accordingly guilty of aiding and abetting the violation of Article 266 (b).
15. The applicant and Mr Jensen, but not the three Greenjackets, appealed against the City Court’s judgment to the High Court of Eastern Denmark (Østre Landsret). They essentially reiterated the submissions made before the City Court and, in addition, the applicant explained that, although he had suspected that the Greenjackets’ statements were punishable, he had refrained from omitting these from the programme, considering it crucial to show their actual attitude. He assumed that they were aware that they might incur criminal liability by making the statements and had therefore not warned them of this fact.
16. By judgment of 16 June 1988 the High Court, by five votes to one, dismissed the appeal.
The dissenting member was of the view that, although the statements by the Greenjackets constituted offences under Article 266 (b) of the Penal Code, the applicant and Mr Jensen had not transgressed the bounds of the freedom of speech to be enjoyed by television and other media, since the object of the programme was to inform about and animate public discussion on the particular racist attitudes and social background of the youth group in question.
17. With leave the applicant and Mr Jensen appealed from the High Court judgment to the Supreme Court (Højesteret), which by four votes to one dismissed the appeal in a judgment of 13 February 1989. The majority held:
"The defendants have caused the publication of the racist statements made by a narrow circle of persons and thereby made those persons liable to punishment and have thus, as held by the City Court and the High Court, violated Article 266 (b) in conjunction with Article 23 of the Penal Code. [We] do not find that an acquittal of the defendants could be justified on the ground of freedom of expression in matters of public interest as opposed to the interest in the protection against racial discrimination. [We] therefore vote in favour of confirming the judgment [appealed from]."
Justice Pontoppidan stated in his dissent:
"The object of the programme was to contribute to information on an issue - the attitude towards foreigners - which was the subject of extensive and sometimes emotional public debate. The programme must be presumed to have given a clear picture of the Greenjackets’ views, of which the public was thus given an opportunity to be informed and form its own opinion. In view of the nature of these views, any counterbalancing during or immediately before or after would not have served a useful purpose. Although it concerned a relatively small group of people holding extreme views, the programme had a fair degree of news and information value. The fact that the defendants took the initiative to disseminate such views is not of paramount importance for the assessment of their conduct. In these circumstances and irrespective of the fact that the statements rightly have been found to be in violation of Article 266 (b), I question the advisability of finding the defendants guilty of aiding and abetting the violation of this provision. I therefore vote in favour of the defendants’ acquittal."
18. When the Supreme Court has rendered judgment in a case raising important issues of principle it is customary that a member of the majority publishes a detailed and authoritative statement of the reasons for the judgment. In keeping with this custom, Justice Hermann on 20 January 1990 published such a statement in the Weekly Law Journal (Ugeskrift for Retsvæsen, 1989, p. 399).
As regards the conviction of the applicant and Mr Jensen, the majority had attached importance to the fact that they had caused the racist statements to be made public. The applicant’s item had not been a direct report on a meeting. He had himself contacted the three youths and caused them to make assertions such as those previously made in Information, which he knew of and probably expected them to repeat. He had himself cut the recording of the interview, lasting several hours, down to a few minutes containing the crude comments. The statements, which would hardly have been punishable under Article 266 (b) of the Penal Code had they not been made to a wide circle ("videre kreds") of people, became clearly punishable as they were broadcast on television on the applicant’s initiative and with Mr Jensen’s approval. It was therefore beyond doubt that they had aided and abetted the dissemination of the statements.
Acquitting the applicant and Mr Jensen could only be justified by reasons clearly outweighing the wrongfulness of their actions. In this connection, the interest in protecting those grossly insulted by the statements had to be weighed up against that of informing the public of the statements. Whilst it is desirable to allow the press the best possible conditions for reporting on society, press freedom cannot be unlimited since freedom of expression is coupled with responsibilities.
In striking a balance between the various interests involved, the majority had regard to the fact that the statements, which were brought to a wide circle of people, consisted of series of inarticulate, defamatory remarks and insults spoken by members of an insignificant group whose opinions could hardly be of interest to many people. Their news or information value was not such as to justify their dissemination and therefore did not warrant acquitting the defendants. This did not mean that extremist views could not be reported in the press, but such reports must be carried out in a more balanced and comprehensive manner than was the case in the television programme in question. Direct reports from meetings which were a matter of public interest should also be permitted.
The minority, on the other hand, considered that the right to information overrode the interests protected by Article 266 (b) of the Penal Code.
Finally, Justice Hermann noted that the compatibility of the impugned measures with Article 10 (art. 10) of the Convention was not raised during the trial.
19. At the relevant time Article 266 (b) of the Penal Code provided:
"Any person who, publicly or with the intention of disseminating it to a wide circle ("videre kreds") of people, makes a statement, or other communication, threatening, insulting or degrading a group of persons on account of their race, colour, national or ethnic origin or belief shall be liable to a fine or to simple detention or to imprisonment for a term not exceeding two years."
Article 23, paragraph 1, reads:
"A provision establishing a criminal offence shall apply to any person who has assisted the commission of the offence by instigation, advice or action. The punishment may be reduced if the person in question only intended to give assistance of minor importance or to strengthen an intent already resolved or if the offence has not been completed or an intended assistance failed."
20. The 1991 Media Liability Act (Medieansvarsloven, 1991:348), which entered into force on 1 January 1992, that is after the events giving rise to the present case, lays down rules inter alia on criminal liability in respect of television broadcasts. Section 18 provides:
"A person making a statement during a non-direct broadcast (forskudt udsendelse) shall be responsible for the statement under general statutory provisions, unless:
(1) the identity of the person concerned does not appear from the broadcast; or
(2) [that person] has not consented to the statement being broadcast; or
(3) [he or she] has been promised that [he or she] may take part [in the broadcast] without [his or her] identity being disclosed and reasonable precautions have been taken to this effect.
In the situations described in paragraph 1, sub-paragraphs (1) to (3) above, the editor is responsible for the contents of the statements even where a violation of the law has occurred without intent or negligence on his part ..."
Pursuant to section 22:
"A person who reads out or in any other manner conveys a text or statement, is not responsible for the contents of that text or statement."
21. Provisions relating to the prohibition of racial discrimination and the prevention of propaganda of racist views and ideas are to be found in a number of international instruments, for example the 1945 United Nations Charter (paragraph 2 of the Preamble, Articles 1 para. 3, 13 para. 1 (b), 55 (c) and 76 (c)), the 1948 Universal Declaration of Human Rights (Articles 1, 2 and 7) and the 1966 International Covenant on Civil and Political Rights (Articles 2 para. 1, 20 para. 2 and 26). The most directly relevant treaty is the 1965 International Convention on the Elimination of All Forms of Racial Discrimination ("the UN Convention"), which has been ratified by a large majority of the Contracting States to the European Convention, including Denmark (9 December 1971). Articles 4 and 5 of that Convention provide:
"States Parties condemn all propaganda and all organizations which are based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form, and undertake to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, such discrimination and, to this end, with due regard to the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in Article 5 of this Convention, inter alia:
(a) shall declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist activities, including the financing thereof;
..."
"In compliance with the fundamental obligation laid down in ... this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights:
...
(d) ...
viii. the right to freedom of opinion and expression;
..."
The effects of the "due regard" clause in Article 4 has given rise to differing interpretations and the UN Committee on the Elimination of Racial Discrimination ("the UN Committee" - set up to supervise the implementation of the UN Convention) was divided in its comments on the applicant’s conviction. The present case had been presented by the Danish Government in a report to the UN Committee. Whilst some members welcomed it as "the clearest statement yet, in any country, that the right to protection against racial discrimination took precedence over the right to freedom of expression", other members considered that "in such cases the facts needed to be considered in relation to both rights" (Report of the Committee to the General Assembly, Official Records, Forty-Fifth Session, Supplement No. 18 (A/45/18), p. 21, para. 56).
VIOLATED_ARTICLES: 10


ITEMID: 001-72726
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF BALTIC v. SLOVENIA
IMPORTANCE: 4
CONCLUSION: No violation of Art. 6-1;Not necessary to examine Art. 13
JUDGES: David Thór Björgvinsson;John Hedigan
TEXT: 5. The applicant was born in 1963 and lives in Velenje.
6. On 6 May 1993 the applicant was injured in an accident at work. The applicant’s employer had taken out insurance with the insurance company ZT.
On 5 April 1994 the applicant instituted civil proceedings against ZT in the Celje Basic Court, Celje Unit (Temeljno sodišče v Celju, Enota v Celju) seeking damages in the amount of 1,600,000 SIT (approximately 6,670 euros) for the injuries sustained.
Between 24 November 1994 and 19 January 1996 the applicant lodged three preliminary written submissions.
Of the five hearings held between 1 December 1994 and 12 April 1996 none was adjourned at the request of the applicant.
At the last hearing the court decided to deliver a written judgment. The judgment, rejecting the applicant’s claim in part, was served on the applicant on 8 July 1996.
7. On 12 July 1996 the applicant appealed to the Celje Higher Court (Višje sodišče v Celju).
On 23 January 1997 the court allowed the appeal, quashed the first-instance court judgment and remitted the case to the first-instance court for re-examination. The decision was served on the applicant on 4 March 1997.
8. Between 3 December 1998 and 8 January 1999 the applicant filed three preliminary written submissions in the proceedings in the re-examination proceedings before a new first-instance court judge.
Of the four hearings held between 13 January 1999 and 2 June 1999 none was adjourned at the request of the applicant.
At the last hearing the court decided to deliver a written interim judgment. The judgment, holding the applicant’s adversary absolutely liable for damages sustained by the accident, was served on the applicant on 15 July 1999. The court did not rule on the amount of damages and the costs of the case.
9. On 13 August 1999 ZT appealed to the Celje Higher Court (Višje sodišče v Celju).
The appeal was dismissed on 17 February 2000.
10. On 28 April 2000 ZT lodged an appeal on points of law with the Supreme Court (Vrhovno sodišče).
On 24 January 2001 the court rejected the appeal.
The judgment was served on the applicant on 26 February 2001.
11. Between 17 April 2000 and 8 September 2000, in the continued proceedings before the first instance court, the applicant made three requests that a date be set for a hearing.
On 5 May 2000 and 27 February 2001 he filed preliminary written submissions.
A hearing scheduled for 28 March 2001 was cancelled at the applicant’s request in anticipation of out of court settlement.
At the hearing held on 4 July 2001 the applicant withdrew his claim since the case was settled out of court on that same day.
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-121271
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2013
DOCNAME: TWOMEY, CAMERON AND GUTHRIE v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Ineta Ziemele;Ledi Bianku;Päivi Hirvelä;Paul Mahoney;Vincent A. De Gaetano
TEXT: The first and second applicants, Mr John Anthony Twomey and Mr Glenn Macdonald Cameron, are an Irish and a British national, who were born in 1948 and 1959 respectively. They were represented before the Court by Mr G. Bromelow, a lawyer practising in London. The third applicant, Ms Bianca Guthrie, is a British national, who was born in 1975 and lives in London. She is represented before the Court by Mr J. Edwards of Westgate Chambers and Mr S. Genen of Criminal Defence Solicitors, lawyers practising in Lewes and London respectively.
1. On 6 February 2004 an armed robbery occurred at a warehouse near Heathrow Airport. In March 2005 the trial began before Judge R, sitting with a jury, of Mr Twomey and six other defendants charged with offences related to the robbery. In the course of the trial, an application by counsel for one of the other defendants required the judge to investigate a substantial volume of material under public interest immunity conditions; that is, in a closed hearing without disclosure of the contents of the documents to the defence. The judge decided that the material was inadmissible as evidence and indicated that some was highly prejudicial to the first applicant. Subsequently, the first applicant became ill and the jury was discharged from returning a verdict against him. At the end of the trial two of the remaining defendants were acquitted altogether, but the jury was unable to agree on a verdict in relation to the other four and a re-trial was ordered.
2. The first re-trial began against Mr Twomey and two others in June 2007, again before Judge R and a jury. This trial lasted over six months. By the date of the summing up the jury had been reduced to ten members. After a retirement lasting two days, the trial judge was notified by the jury that they had reached “on all defendants on all counts, a very strong majority decision”. The judge said that he would not accept a majority verdict at that stage. However he added that to assist the defence considering what submissions should be made about the timing of the majority direction, he would indicate that the verdicts were likely to be adverse to them. Nine jurors returned to court after the weekend, but the tenth juror refused to return to court and was discharged. The jury was unable to reach unanimous verdicts. With only nine jurors, a majority verdict could not be taken. A second re-trial was ordered.
3. Meanwhile, Mr Cameron was arrested and indicted to stand trial with Mr Twomey and the other defendants. The second re-trial began on 30 June 2008, again before Judge R and a jury. On 5 December 2008, under closed conditions, the prosecution informed the judge that they were in possession of material which showed that improper approaches were being made to two members of the jury. This material was not disclosed to the defence. On 8 December 2008 the judge informed the parties that he was minded to discharge the jury because of alleged jury tampering. The amount of information which he could give about the allegations was, as he put it in his open judgment, “necessarily limited”. He considered representations from the defence, but concluded that no alternative to the discharge of the jury was available. Accordingly on 9 December 2008 the jury was discharged.
4. Judge R then reflected whether he should make an order under section 46(3) of the Criminal Justice Act 2003 (“the 2003 Act”: see paragraph 23 below), that the trial should continue before him sitting alone without a jury. He addressed a complaint made on behalf of the defendants that they were not being allowed to see the material on which his conclusion that jury tampering had taken place at the aborted trial was based, which prevented them from addressing the question whether a “real and present” danger of jury tampering existed. Judge R expressed sympathy with this submission, but said in express terms that “the law does not permit me to disclose the detail of the information upon which I acted in discharging the jury”. He repeated his entire satisfaction that a determined attempt had been made at jury tampering and added that even if the defence counsel had been allowed to see the material, there was no prospect that any consequent submissions could have altered his conclusion. Next, he reminded himself of the undisclosed material relating to the first applicant which he had seen in the course of the 2005 trial. He concluded that his knowledge of that material would make it unfair for him to return a verdict on the first applicant, and that this would have a “knock-on effect” on the other defendants, whose cases were inextricably linked to his. He considered that a “serious attempt at jury tampering” had taken place during the trial, and that there was “clearly a real and present danger” of the same thing happening again. He decided that the question whether the next re-trial should be by judge and jury or by judge alone should be considered by the President of the Circuit, the High Court Judge C.
5. In a closed session, with the assistance of counsel for the Crown, Judge C examined the undisclosed material concerning the allegations of jury tampering which had originally been put before Judge R. He invited submissions in open court from defence counsel. He also examined the open and closed court judgments and heard evidence from police officers about possible jury protection. Judge C noted that the problems caused to the defence by the lack of disclosure. However, he concluded that the public interest demanded that it remain confidential. He indicated that cases in which this course might be appropriate would be likely to be cases where the danger of jury tampering was at its “most extreme”. He added that if he were to conclude that the defendants should be informed of the matters of which they were ignorant then, notwithstanding the public interest that demanded that the information should be withheld, the entire object of the provisions intended to address jury tampering would be defeated. Judge C agreed with Judge R that there was a real and present danger that a future jury would be tampered with, and that the danger would persist from the moment when any new trial before a jury started until its conclusion. Nonetheless he considered that sufficient police protection could be provided, thus making it possible to conduct the re-trial with a jury.
6. The prosecution appealed to the Court of Appeal. On 5 June 2009, in accordance with the provisions of sections 44-48 of the 2003 Act, the Court of Appeal ordered that the third re-trial should be conducted by a judge alone without a jury (R v. Twomey and Others [2009] EWCA Crim 1035). It confirmed the conclusions of Judges R and C that the evidence established to the criminal standard that there was a real and present danger to the integrity of a future jury trial and that the danger of jury tampering and subversion of the process of trial by jury was very significant. They considered that the protective measures envisaged by Judge C would be inadequate in the circumstances to obviate these risks and that, in any event, the consequent impact on individual jurors of such a package of security measures would be unfair.
7. Judge T was appointed to act as the trial judge and to conduct the trial on his own. None of the material relating to jury tampering was relied on by the prosecution, and Judge T made it clear that he would not examine it, although as trial judge he remained under a continuing obligation to review whether it was fair not to disclose any other public interest immunity material which related to the issues at trial, on the ground that it would assist the defence or undermine the case for the prosecution. On 31 March 2010 he gave judgment convicting both applicants and two others of robbery, possessing firearms and other linked offences. The first applicant was sentenced to 20 years’ and six months’ imprisonment and the second applicant was sentenced to 15 years’.
8. Between 9 and 11 November 2010 the Court of Appeal heard the applicants’ appeal against conviction and sentence (R v Twomey and others (No 2) [2011] EWCA Crim 8). The main issue canvassed in the appeal was the fairness of the process by which the decision was made to conduct the retrial without a jury, and in particular the use of undisclosed evidence in that process. In its judgment dated 20 January 2011, the Court of Appeal dismissed the appeal. The Lord Chief Justice commenced the judgment with the following observations:
“4. This remains the only case in this jurisdiction where trial on indictment by judge alone has taken place to nullify the risk of ‘jury tampering’ or jury nobbling. For the time being, although the statutory provisions relating to trial on indictment by judge alone have been in force for some years, this case is unique, and we must hope that it will remain so. The proper operation of the criminal justice system requires that the verdicts returned by a jury, as with any other court, must be true verdicts in accordance with the evidence. Verdicts returned by a jury which has been nobbled cannot represent true verdicts. If criminals choose to subvert or attempt to subvert the process of trial by jury they have no justified complaint if they are deprived of it. That is the consequence they face. The certain way of avoiding trials by judge alone where trial by jury would otherwise be available is for jury tampering to stop: it is as stark and simple as that.
5. Notwithstanding that trial by jury has been forfeited, the requirement that trial by judge alone should be fair is undiminished. All that has changed is the constitution of the tribunal. There is nothing in the common law, or in any of the provisions of the European Convention of Human Rights which suggests that trial by judge alone must, of itself, be deemed to be unfair, or that where an order for trial by judge alone is made, the subsequent trial offends the principle that every defendant facing any criminal charge is entitled to a fair trial. And it has not been suggested in argument that an order for trial by judge alone is or should be deemed to be an unfair trial. The fairness of any trial by judge alone is, of course, subject to review in this court, and if on examination it appears that the trial judge had acted unfairly, or in breach of the ordinary rules which govern judicial conduct, this court would have no hesitation in quashing any subsequent conviction. As it is, as we emphasise, no suggestion of unfairness has been directed at [Judge T’s] conduct of this trial, and indeed the verdicts were returned after a trial which was conducted with conspicuous fairness.”
The Lord Chief Justice commented as follows on the choices faced by a trial judge following a decision to discharge a jury mid-trial:
“21. ... The judge is then faced with two alternatives, either to continue with the trial or to terminate it. As we have narrated, in this case [the trial judge] brought the trial to an end. We understand his reasons, and what follows is not intended to be seen as criticism of the decision. However, given that one of the purposes of this legislation is to discourage jury tampering, and given also the huge inconvenience and expense for everyone involved in a re-trial, and simultaneously to reduce any possible disadvantage accruing to those who are responsible for jury tampering or for whose perceived benefit it has been arranged by others, and to ensure that trials should proceed to verdict rather than end abruptly in the discharge of the jury, save in unusual circumstances, the judge faced with this problem should order not only the discharge of the jury but that he should continue the trial. The fact that he has been invited to consider material covered by [public interest immunity] principles, whether during the trial, or in the course of considering the application, should not normally lead to self-qualification.”
He continued by considering the impact of the judgment of the House of Lords in Secretary of State for the Home Department v. AF and others (No. 3) [2009] UKHL 28, which concerned non-derogating control orders under the Prevention of Terrorism Act 2005, involving significant restrictions on liberty. The House of Lords decided that it was inconsistent with the right to a fair hearing under Article 6 of the Convention to make a control order on the basis of material which was undisclosed to the subject and his advisers and which could not, therefore, effectively be challenged by them. In the present case, the Court of Appeal rejected the applicants’ argument that it followed from the judgment in AF (No. 3) that they were entitled to disclosure of the evidence which had formed the basis for the decision to proceed to retrial without a jury, for the following reasons:
“32. Attractively advanced as it was, this submission failed to grapple with the reality that the question whether the trial of the defendants should proceed as a trial by judge and jury or trial by judge alone was concerned exclusively with the mode of trial. It was not itself a criminal proceeding in the sense that the exercise of the jurisdiction to order a trial on indictment by judge alone might create or have the potential to create adverse consequences of the kind involved in control orders. No restriction on any individual defendant’s liberty, nor any other form of punishment, nor any sanction could follow from an order for trial by judge alone. Equally the order did not and could not constitute any form of interference with his property rights. The ‘right’ engaged in the present appeal is confined to the mode of trial, not its fairness.”
9. Once the decision of the Court of Appeal was known, the first applicant asked the Court of Appeal to certify the following question as “points of law of general public importance”, such as would have allowed the Applicants to apply to the Supreme Court for an appeal against the Court of Appeal’s decision:
“In a criminal trial is the use of Closed Material Procedure by a Court for a particular purpose and/or in a particular circumstance lawful without there being in existence statutory provision granting the Court jurisdiction to use Closed Material Procedure for such purpose and/or in such circumstance?”
10. On 13 October 2011 the Court of Appeal refused to certify a point of law, effectively ending the domestic avenues of appeal.
11. The applicant, together with her mother “CJW”, sister “CG”, brother “RG” and another defendant, stood trial between February and March 2011 on six counts of conspiracy to defraud. The prosecution case was that, by adopting false identities, the defendants dishonestly involved themselves in fraudulent applications for housing benefit and council tax benefit in relation to various properties in different London boroughs, giving an estimated profit of GBP 112,000, which they used to purchase more property. Bianca Guthrie and her co-accused denied the charges.
12. The jury were sworn in on 7 February 2011. On 4 March 2011 one of the jurors complained that the previous day, when she was waiting for a pre-arranged lift outside the court house, a woman whom she had seen in the public gallery approached her and asked her a question about her telephone. At that point, Bianca Guthrie and CG walked past. The applicant walked on with the woman from the public gallery but CG stopped and asked the juror whether they had seen each other at a gay club and asked her for her telephone number. The juror panicked and gave her a false number. The following morning she told two other jurors what had happened. When she informed court staff, they isolated these three jurors until the trial judge had questioned each of them individually. The judge ascertained that each of the jurors felt able to continue with the case and to remain impartial. She then informed the parties what had happened. She revoked CG’s bail. When questioned, CG maintained that she had thought she recognised the woman from somewhere but had not realised she was a juror in her case.
13. Subsequently, the applicant’s brother, RG, made an application for the jury to be discharged on the ground that they were likely to view CG’s approach as an attempt improperly to influence them. The trial judge rejected this application, relying on the firm assertions of the three jurors who knew about the incident.
14. The jury retired on 11 March. On 15 March they acquitted one defendant. One juror was then discharged, because of a longstanding holiday commitment.
15. On 16 March 2011, after the jury had been sent back out to continue their deliberations, the trial judge was informed by the prosecution ex parte in chambers that one of the police officers involved in investigating the case had become aware of material that indicated that there had been possible interferences with the jury, intended to affect their deliberations. As a result, further inquiries were made but no disclosure was made to the defence on grounds of public interest immunity. It was decided to arrest SL, a former female companion of CG, who was alleged to have been implicated in the jury tampering.
16. The following morning the jury were sent away for the day. SL attended court in the afternoon and was arrested. At that point, it was disclosed to the defence that an allegation had been made that SL had been in contact with a member of the jury and that CJW, CG and Bianca Guthrie were aware of what had taken place. The three defendant members of the Guthrie family who were still at liberty were then remanded in custody.
17. On 18 March 2011 an inter partes hearing took place in chambers, to determine whether or not the trial judge should discharge the jury under the provisions of section 46(1) of the Criminal Justice Act 2003 (see below). Bianca Guthrie, together with RG, opposed the suggestion that the jury should be discharged and asked for the decision to be postponed until further inquiries could be made. However, the trial judge considered that any further delay would have an unsettling effect on the jury and that, since they had already retired, any further questioning would impinge upon the confidentiality of the jury room. She concluded that material had been placed before her in a cogent and compelling format which indicated that jury tampering had taken place, and that there was a “high degree of need” for the jury to be discharged.
18. On 24 March 2011 the gist statement already disclosed to the defence was amended and extended to provide as follows:
“(i) An allegation has been made that a third party [SL] has been in contact with a female member of the jury in an attempt to ensure that the juror returned a not guilty verdict; and was contacting the juror about how deliberations were going. (ii) The jury member allegedly discussed jury voting and deliberations in the course of this contact. (iii) This contact is alleged to have taken place following the remand of [CG] on the 4th March 2011 up to and including the time when the jury were in retirement to consider their verdict. (iv) The contact between [SL] and the juror is alleged to have taken place ‘face to face’, with one of those meetings said to have taken place after the court had risen for the day and in close proximity to the court building and/or its grounds. This meeting may have been witnessed by another member of the jury. However [SL] is also alleged to have had the mobile telephone number of the juror. Contact is alleged to have taken place between [SL] and the juror on approximately 3 occasions. (v) It is understood that [CG], [the applicant] and the third party [SL] have been in communication since contact was made with the juror. (vi) [CJW] has also been involved. (vii) There is presently no direct evidence of the contact between [SL] and the juror. (viii) [SL] was arrested and interviewed in relation to this allegation.”
A transcript of the interview with SL was also provided to the defence.
19. On 28 March 2011 the trial judge heard submissions from the prosecution and the representatives of the defendants on the issue whether the trial should continue without a jury, in accordance with section 46(3) of the Criminal Justice Act 2003 (see paragraph 23 below). With reference in particular to the Court of Appeal’s judgment in Twomey (see paragraph 8 above), the judge held that the right to trial by jury was not absolute under domestic law and was not required by Article 6 of the Convention. The judge next considered the question whether there would be a risk of bias if she were to continue with the trial, having already examined undisclosed material relating to the allegation of jury tampering, and having made rulings adverse to the defence on the basis of this material, including remanding the defendants in custody. She concluded that there was no real danger of a perception of bias, since the undisclosed material she had examined was not related to the criminal charges against the defendants, but only to the allegation of jury tampering. It was not unusual in a trial of such length for a judge to have made a number of rulings adverse to the defence and if the fact of having made such rulings disqualified her from proceeding with the trial under section 46(3) of the 2003 Act, it would be possible so to proceed only in very rare cases. Furthermore, of the eight or so rulings she had made so far, approximately half had been favourable to the defence. She held that, having undertaken a rigorous and thorough examination of the evidence, she was satisfied that jury tampering had taken place requiring the jury to be discharged, but that it would not be unfair to any of the defendants to continue with the trial without the jury.
20. The trial judge also gave leave for an interlocutory appeal on this issue, which took place on 10 May 2011. The Court of Appeal, having examined the undisclosed material which had been seen by the trial judge, gave its judgement on 26 July 2011, upholding the trial judge’s ruling. It observed that nothing considered by the trial judge under public interest immunity principles should have been disclosed to the defence; the gist statement provided to the defence accurately summarised the effect of that material; there was nothing in the material to suggest that the trial judge should have disqualified herself from continuing with the trial. The legislation did not suggest that the trial judge who examined evidence and made findings relating to the discharge of the jury should then recuse himself and it would be “strange if it were possible for a criminal or group of criminals to take extreme steps to undermine the process of trial by jury, and then to argue that the judge who had made the necessary findings would then have to disqualify himself”.
21. Subsequently, on 14 July 2011, the trial judge convicted all four remaining defendants of all the charges against them.
22. On 28 September 2011 the Supreme Court refused leave to appeal against the interlocutory judgment of the Court of Appeal.
23. Section 46 of the Criminal Justice Act 2003 provides as follows:
“(1) This section applies where –
(a) a judge is minded during a trial on indictment to discharge the jury, and
(b) he is so minded because tampering appears to have taken place.
(2) Before taking any steps to discharge the jury, the judge must –
(a) inform the parties that he is minded to discharge the jury,
(b) inform the parties of the grounds on which he is so minded, and
(c) allow the parties an opportunity to make representations.
(3) Where the judge, after considering any such representations, discharges the jury, he may make an order that the trial is to continue without a jury if, but only if, he is satisfied –
(a) that jury tampering has taken place, and
(b) that to continue the trial without a jury would be fair to the defendant or defendants;
But this is subject to subsection (4).
(4) If the judge considers that it is necessary in the interests of justice for the trial to be terminated, he must terminate the trial.
(5) Where the judge terminates the trial under subsection (4), he may make an order that any new trial which is to take place must be conducted without a jury if he is satisfied in respect of the new trial that both of the conditions set out in section 44 are likely to be fulfilled.
(6) Subsection (5) is without prejudice to any other power that the judge may have on terminating the trial.
(7) Subject to subsection (5), nothing in this section affects the application of section 43 or 44 in relation to any new trial which takes place following the termination of the trial.”


ITEMID: 001-59163
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF PALLANICH v. AUSTRIA
IMPORTANCE: 2
CONCLUSION: Preliminary objection allowed (non-exhaustion of domestic remedies)
JUDGES: Nicolas Bratza
TEXT: 8. On 17 May 1991 the Walserberg Customs Office (Zollamt) opened criminal proceedings against the applicant under the Tax Offences Act (Finanzstrafgesetz) concerning charges of attempted smuggling, and heard him as a suspect.
9. On 23 May 1991 the Customs Office transmitted the information (Strafanzeige) to the Criminal Department of the Salzburg Customs Office.
10. On 19 June 1991 the Criminal Department of the Salzburg Customs Office, in summary proceedings, issued a penal order (Strafverfügung) against the applicant finding him guilty of attempted smuggling in that he had, on 17 May 1991, when crossing the border between Germany and Austria in his car, failed to declare various goods with a total value of Austrian schillings (ATS) 13,742. The Customs Office imposed a fine of ATS 3,500 on the applicant and, in case of default, two days' imprisonment. Further, it ordered the forfeiture of the sum of ATS 13,742 which had been deposited as a security for the goods concerned.
11. On 26 July 1991 the applicant filed an objection (Einspruch) against the penal order. Thereupon, the Criminal Department of the Salzburg Customs Office, after having carried out investigations, fixed 9 October 1991 as the date for hearing the applicant's case and informed the applicant’s counsel accordingly.
12. On 9 October the Criminal Department of the Salzburg Customs Office held the hearing. Neither the applicant nor his counsel appeared.
13. On 11 November 1991 the Criminal Department of the Salzburg Customs Office, noting that the applicant had, without an excuse, failed to appear at the hearing, convicted him of attempted smuggling, imposing a fine of ATS 3,500, with two days' imprisonment in default. It also upheld the forfeiture of the sum which had been deposited as a security for the goods concerned.
14. On 14 January 1992 the applicant filed an appeal with the Salzburg Regional Directorate of Finance (Finanzlandesdirektion). He submitted, in particular, that he had not declared the goods in question to the customs authorities since he had not intended to import them into Austria but only to transport them through Austria.
15. On 8 June 1995 the Criminal Department of the Salzburg Regional Directorate of Finance dismissed the applicant's appeal. This decision was served on the applicant's counsel on 5 July 1995.
16. Under Article 130 of the Federal Constitution (Bundes-Verfassungsgesetz) the Administrative Court decides inter alia on applications (Beschwerden) in which it is alleged that the administrative authorities have breached their duty to decide.
17. Article 132 of the Federal Constitution, so far as relevant, reads as follows:
“An action for breach by the administrative authorities ... of the duty to decide can be lodged by anyone entitled as a party in administrative proceedings to enforce that duty. An action for breach of the duty to decide is inadmissible in administrative criminal proceedings, except private prosecutions and prosecutions in respect of tax offences.”
18. Section 73 of the General Administrative Procedure Act (Allgemeines Verwaltungsverfahrensgesetz) deals with the administrative authorities’ duty to decide. So far as relevant, it reads as follows:
“(1) Subject to any contrary provision in the administrative regulations, the authorities must give a decision on applications by parties ... and appeals without unnecessary delay and at the latest six months after the application or appeal has been lodged.
(2) If the decision is not served on the party within this time-limit, jurisdiction will be transferred to the competent superior authority upon the party’s written request. ...”
In proceedings under the Tax Offences Act an application for transfer of jurisdiction to the superior authority is excluded.
19. The relevant provisions of the Administrative Court Act (Verwaltungsgerichtshofgesetz) relating to the application against the administration’s failure to decide read as follows:
“An application under Article 132 of the Federal Constitution for breach of the duty to decide (application against the administration’s failure to decide) can be lodged only when the highest authority to which an application can be made in administrative proceedings, either by way of an appeal or an application for transfer of jurisdiction, ... has been applied to by a party and has not made a decision on the matter within six months. ...”
“(2) On an application against the administration’s failure to decide under Article 132 of the Federal Constitution the relevant authority is to be ordered to give a decision within three months and either produce to the Administrative Court a copy of the decision or state why in its opinion there has not been a breach of the duty to decide. The time-limit can be extended once if the administrative authority can show that there are relevant reasons why it is impossible to reach a decision within the prescribed time-limit. If a decision is made within the prescribed time-limit, the proceedings in respect of the application against the administration’s failure to decide shall be stayed.”
“(1) Subject to any contrary provision of this Federal Act, the Administrative Court shall give a judgment in all cases.
...
(4) In respect of applications under Article 132 of the Federal Constitution, the Administrative Court may initially limit its judgment to a decision on specific relevant points of law and order the authority to make a decision consistent with the determined points of law within a specified time-limit which must not exceed eight weeks. If the Administrative Court does not use that possibility or the authority in question fails to comply with the order, the Administrative Court shall rule on the application against the administration’s failure to decide by giving a judgment on the merits, for which it shall have full discretion in the administrative authority’s stead.”
20. According to the Constitutional Court’s judgment of 30 September 1989 (published in the official text collection VfSlg 12167/89) the Administrative Court can be seized with an application against the administration’s failure to decide under Article 132 of the Federal Constitution, taken in conjunction with section 27 of the Administrative Court Act, also where an authority of first instance failed to give a decision within the statutory six month time-limit, provided that no other remedy (such as a request for a transfer of jurisdiction) lies against the failure to decide.
21. According to statistical information provided by the Government, the Administrative Court dealt with a total of 825 applications against the administration’s failure to decide between 1 January 1998 and 31 December 1999.
22. In 67,2 % of the cases (555 of 825) the proceedings resulted in the respondent authority giving a decision within four months from the time when the Administrative Court was seized. The Administrative Court took about a month to issue the order to the respondent authority to give the decision within a three-months time-limit (section 36 § 2 of the Administrative Court Act). In these cases the proceedings before the Administrative Court were discontinued as the applicant’s claim was satisfied (515 of 825 cases), or on the ground that the applicant, having achieved his aim, withdrew the action (40 of 825 cases).
In 6,7 % of the cases (55 of 825 cases) the respondent authority failed to comply with the Administrative Court’s order and the Administrative Court had itself to give a decision on the merits under section 42 § 4 of the Administrative Court Act. It did so after an average duration of the proceedings before it of two years and almost three months.
The remaining 26,1 % of the cases (215 of 825) were rejected by the Administrative Court for lack of jurisdiction or for other grounds of inadmissibility.


ITEMID: 001-107713
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF GLADYSHEVA v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Violation of P1-1;Violation of Art. 8;Restitution of the disputed property or financial award;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen
TEXT: 5. The applicant was born in 1973 and lives in Moscow.
6. On 28 September 2005 the applicant bought a 37.5 square metres flat in Moscow at 59 Novocheryomushkinskaya Street (“the flat”) and has been living there with her son born in 1998. The seller of the flat, Mr V., had bought it from Ms Ye., who had acquired it under the privatisation scheme. The facts relating to the ownership of the flat prior to the applicant’s acquisition of it and the subsequent invalidation of her title may be summarised as follows.
7. Before its privatisation the flat was owned by the City of Moscow. On 10 September 2004 the prefect of Yugo-Zapadnyy circuit allocated the flat to Mr M. as social housing. M. signed a social tenancy contract on 29 October 2004 and was registered as the flat’s principal, and only, tenant on 12 November 2004. No family members were indicated in the moving-in order.
8. On 19 November 2004 the Department of the Interior of the Cheryomushki District of Moscow registered M.’s spouse Ye. at his address. The registration was effected upon M.’s written application, certified by public notary R. on 17 November 2004, and accompanied by Ye.’s and M.’s marriage certificate issued in Kaluga on 15 October 2004. Ye.’s identity was confirmed upon presentation of her passport.
9. On 19 December 2004 M. was found dead. The inquest found that he had fallen out of the window of his flat and concluded that he had committed suicide, as no evidence of any other person’s involvement could be found. It was noted that M. was a former drug addict.
10. On 11 February 2005 Ye. issued a power of attorney to L., authorising him to represent her in all transactions related to the flat and in all privatisation and registration procedures before the property and residence registration authorities. The power of attorney was certified by public notary S., who had indicated in a standard clause that Ye. had signed the authority in her presence and that her identity and legal capacity had been confirmed.
11. On 30 March 2005 the Housing Policy and Housing Fund Department of the City of Moscow (Департамент жилищной политики и жилищного фонда г. Москвы, “the Moscow Housing Department”) concluded a social tenancy contract with Ye. and on the same day signed a privatisation agreement in respect of the flat. Ye. was represented by L. in these transactions.
12. On 6 May 2005 the Moscow Office of the Federal Authority for Registration of Property (Главное управление Федеральной регистрационной службы по г. Москве) registered Ye.’s ownership of the flat in the Consolidated State Register of Real Estate Titles and Transactions (Единый государственный реестр прав на недвижимое имущество и сделок с ним, “the Land Register”).
13. On 23 May 2005 Ye. sold the flat to V. On 6 June 2005 V.’s ownership was registered in the Land Register.
14. On 28 September 2005 V. sold the flat to the applicant. The terms of the purchase included the applicant’s obligation to pay the seller 990,000.00 Russian roubles (RUB) in respect of the flat, an advance payment of 6,000 United States dollars (USD), plus a contribution of RUB 1,465,847 to renovation costs. It also included an undertaking by the seller to buy the applicant an equivalent flat in the event that the applicant lost the title for reasons relating to any defects of the title which pre-dated the purchase of the flat by the applicant.
15. The transfer of title was registered at the Moscow Office of the Federal Authority for the Registration of Property.
16. The applicant and her son moved into the flat and have been living there since.
17. On 3 May 2007 Ye. died, reportedly of natural causes.
18. On 30 January 2008 the Moscow Department of the Interior informed the Moscow Housing Department of suspected fraud in the privatisation of the flat.
19. On an unidentified date in 2008 the Moscow Housing Department brought an action against the applicant and the previous owners of the flat V. and Ye. They referred to a “check” that had revealed that no marriage had taken place between M. and Ye. and that Ye.’s passport used for the registration and privatisation procedures had been declared lost in 1996; they asked the court to establish that the flat had been fraudulently acquired by Ye. and to declare the privatisation and all the ensuing transactions in respect of the flat null and void. The applicant lodged a counterclaim to have her title to the flat recognised by the court.
20. On 25 July 2008 the Cheryomushkinskiy District Court of Moscow dismissed the authorities’ claim and granted the applicant’s counterclaim, recognising her as the legitimate owner of the flat. It noted, in particular, that the applicant had purchased the flat in good faith (a bona fide buyer) and paid a purchase price for it. Therefore there were no grounds to invalidate the transactions in question. No appeal was lodged within the ten-day statutory limitation period, and the judgment became final and enforceable.
21. On 11 August 2008 the applicant complained to the police that Mr A.B., an official at the Moscow Housing Department, was trying to extort USD 50,000 from her in return for a promise that the Department would not appeal against the judgment of 25 July 2008. On 12 August 2008 the police carried out a covert operation, during which A.B. was caught receiving the aforementioned sum of money from the applicant, who had been primed by the police. On 10 December 2008 A.B. was convicted of embezzlement on account of that episode, and received a custodial sentence.
22. In the meantime, the Moscow Housing Department submitted a request for an extension of the time-limit for appeal against the judgment of 25 July 2008, on the grounds that the prosecution of A.B., who had been in charge of the file, left the Department understaffed and unable to comply with the deadlines. On 14 November 2008 the District Court granted the request and extended the time-limit for the appeal. The appeal hearing took place on 18 December 2008 before the Moscow City Court, which quashed the judgment and remitted the matter back to the District Court for a fresh first-instance examination. It instructed the first-instance court to clarify whether the claims concerned the invalidation of the transactions regulated by Article 167 of the Civil Code, or the reclaiming of property under Article 302 of the Code.
23. On 15 December 2008 criminal proceedings against an “unidentified perpetrator” were instituted on suspicion of fraud in the process of privatisation of the flat. The applicant requested to be granted victim status in these proceedings, but this was refused on the grounds that the damage resulting from the fraud was caused to the Moscow Housing Department, not to the applicant. The decision refusing the applicant victim status was taken by the Moscow City Court on 27 July 2009.
24. On 9 July 2009 the District Court found that the privatisation of the flat by Ye. had been fraudulent. It established, in particular, that the civil act registration authority had found no record of a marriage between M. and Ye. and concluded that their marriage certificate had been forged. Therefore Ye. had had no right to be registered at M.’s address or to privatise his flat after his death. In respect of the applicant, it found that she was a bona fide buyer, within the meaning of Article 302 of the Civil Code. However, it found that the flat, having been fraudulently privatised, had left the possession of the City of Moscow, its lawful owner, without that body having the intention to divest itself of it. Thus, by application of Article 302 of the Civil Code and Constitutional Court ruling 6-P of 21 April 2003, the case fell under one of the two exceptions to the protection of a bona fide buyer’s title, which required that precedence be given to the previous owner. The applicant’s title to the flat was accordingly revoked and the City of Moscow declared the flat’s lawful owner. The court ordered the applicant’s eviction without compensation or an offer of alternative housing. The applicant appealed.
25. On 21 December 2009 the Moscow City Ombudsman wrote to the Mayor of Moscow, asking him to consider offering the applicant a social tenancy of the flat. However, on 19 January 2010 the Moscow Housing Department replied in the negative, stating that this would undermine the order of priority on the waiting list.
26. On 12 February 2010 the investigating authority decided to grant the applicant victim status in the criminal proceedings and questioned her in this capacity. On 23 March 2011, however, they overruled that decision as unfounded, following an order by the prosecutor that they should do so.
27. The criminal investigation of the suspected fraud was then suspended on the grounds that no culprit had been identified. The file, however, contained certain material on the basis of which the courts were able to establish that the privatisation had been carried out improperly. It included, in particular, the finding that all acts relating to Ye.’s registration as a resident of the flat, its privatisation and sale to V. had been carried out using Ye.’s passport, which had been declared lost in 1996. It also contained a reply from the municipal authorities of Kaluga that they had no record of Ye.’s and M.’s marriage having been registered in 2004. The Kaluga passport authorities had replied to the investigator that Ye. had been previously registered as a resident of Kaluga, and her registration there had not been removed until her death in 2007. There was also a reply from public notary R. that she had had no records of M.’s application in her register and she denied having certified it.
28. On 13 May 2010 the appeal against the judgment of 9 July 2009 was rejected in the final instance by the Moscow City Court.
29. The applicant requested a suspension of the execution of the judgment in so far as it concerned the eviction. On 22 July 2010 the court granted her request and adjourned the eviction until 1 February 2011. This term was later extended until 1 June 2011.
30. On 14 December 2010 the Deputy Prosecutor General requested the Supreme Court to examine the applicant’s case in supervisory review proceedings. He considered the revocation of her ownership of the flat unlawful and unjustified. First, he argued that the rule contained in Article 302 § 1 of the Civil Code ordering reinstatement of ownership of the property which was removed from its owner’s possession without the owner’s intention to divest itself of it was inapplicable in her case. He pointed out that the Moscow Housing Department was a party to the transaction in which the flat had been privatised and could not be unaware of it; the Department had never claimed that the official in charge of the privatisation had gone beyond her authority or acted contrary to instructions. Hence it could not be said that the flat had been privatised without the Department having that intention. Therefore, the applicant, as a bona fide buyer, should not have been required to return the flat to its earlier owner, the City of Moscow. Secondly, the Deputy Prosecutor General considered that the judicial decisions had not balanced the interests of the municipality against the lawful rights and interests of the applicant, whereas the protection of individual citizens should have taken priority, in accordance with the Constitution. As a result of a third-party fraud, a single mother and her child faced eviction without compensation and without an offer of alternative housing. He noted that she had no other housing and that all her savings had been put into the purchase of the flat and the costly litigation. Finally, he pointed out that the courts had exceeded their responsibility in applying Article 302 of the Civil Code, in lieu of Article 167 on which the plaintiff had relied, and had thereby granted the award beyond the scope of the claim.
31. On 24 December 2010 the Supreme Court refused the request by the Deputy Prosecutor General, declining to reconsider the case in supervisory-review proceedings. It noted that the applicant’s status as a bona fide buyer had not been in doubt at any stage. However, the courts had correctly applied the law and granted the plaintiff’s lawful claims. It added that the applicant remained free to sue V. for damages.
32. On 31 May 2011 the Cheryomushkinskiy District Court of Moscow rejected the applicant’s application for further suspension of the execution of the judgment of 9 July 2009, noting that there had already been two extensions and there were no grounds for another.
33. On 30 June 2011 the Moscow City Ombudsman wrote to the Mayor of Moscow, alerting him to a growing number of cases of flats being repossessed by the City of Moscow against bona fide buyers on account of irregular privatisation by the previous owners of the flats; all of them were being denied any compensation or substitute housing. In his view, the incidents of fraudulent privatisation should not have been treated by courts as cases where property was removed from possession “without the owner’s intention to divest” within the meaning of Article 302 § 1 of the Civil Code. He pointed out that privatisations were transactions entered into by the State, represented by its public officials, whose duty was to make all the necessary checks and to ensure the procedural integrity of the transaction. The responsibility of the State was thus engaged wherever they failed in this task. In any event, failure to identify documents as forged could not in such circumstances be classified as passage of title without the owner’s intention to divest. He referred to the applicant’s case as one flagrant example of a wrong and unjust outcome of the erroneous interpretation adopted by Moscow courts in such cases. On the same day he sent letters to the Moscow Prosecutor’s Office and the head of the Moscow Department of the Interior, citing the applicant’s case, calling for the thorough investigation of fraud cases of this type, and requesting that the applicant’s victim status be reassessed in the relevant criminal proceedings.
34. According to the applicant’s latest submissions, she has not yet been evicted but considers it imminent.
35. The Civil Code provides for two different avenues by which one’s property title may be challenged by a previous owner:
“1. An invalid transaction shall not entail legal consequences, with the exception of those connected with its invalidity, and shall be invalid from the moment of its conclusion.
2. If a transaction has been recognised as invalid, each of the parties shall be obliged to return to the other party all it has received as part of the transaction, and if return is impossible in kind (including where the transaction concerns the use of property, work performed or services rendered), its cost shall be reimbursed in money - unless other consequences of the invalidity of the transactions have been stipulated by law.
3. If it follows from the content of the disputed transaction that it may only be terminated for the future, the court, while recognising the transaction as invalid, shall terminate its operation for the future.”
“1. If the property has been purchased for a price from a person who had no right to alienate it, and the acquirer is unaware and could not have been aware (the bona fide acquirer, or the acquirer in good faith), the owner shall have the right to reclaim this property from the acquirer, if the said property was lost by the owner or by the person into whose possession the owner has passed the property, or if it was stolen from one or the other, or if it has left their possession in another way, in the absence of intention on their part to divest themselves of it.
2. If the property has been acquired without consideration from a person who had no right to alienate it, the owner shall have the right to reclaim the property in all cases.
3. Money and securities in respect of the property shall not be reclaimed from the bona fide acquirer.”
36. By its ruling of 21 April 2003, 6-P, the Constitutional Court interpreted Article 167 of the Code as not allowing the first owner to reclaim his property from a bona fide buyer unless there is a special legislative provision to this effect. Instead, a claim vindicating prior rights (виндикационный иск) could be lodged under Article 302 of the Code if the conditions indicated in paragraphs 1 and 2 are met, in particular if the property has left the owner’s possession in the absence of intention on the part of him or her to divest themselves of it, or if the property has been acquired without consideration.
37. Further interpretation of Article 302 of the Civil Code was provided by the Plenary of the Supreme Court of the Russian Federation and the Plenary of the High Commercial Court of the Russian Federation, contained in the second paragraph of item 39 of their joint ruling of 29 April 2010, no. 10/22 “On certain questions arising in judicial practice in respect of resolution of disputes connected with the protection of property rights and other real rights” and in the Constitutional Court’s ruling of 27 January 2011, 188OO. They held in particular that there was no automatic link between invalidity of a transaction and an owner’s intention or otherwise, to divest themselves of it. The Constitutional Court’s ruling held, in so far as relevant, as follows:
“... the uncertainty of the legal provisions [including Article 302] challenged by the claimant is eliminated by the interpretation of the Plenary of the Supreme Court of the Russian Federation and the Plenary of the High Commercial Court of the Russian Federation, contained in the second paragraph of item 39 of the [ruling of 29 April 2010, no. 10/22]: ‘the invalidity of the transaction in execution of which the transfer of property was effected does not by itself prove that it left the possession of the owner in the absence of intention to divest on their part; the courts need to establish whether the owner intended to transfer possession to another person’”.
VIOLATED_ARTICLES: 8