ITEMID: 001-93526
LANGUAGEISOCODE: ENG
RESPONDENT: ISL
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: BENEDIKTSDÓTTIR v. ICELAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicant, Ms Jónína Benediktsdóttir, is an Icelandic national who was born in 1957 and lives in Reykjavík. She was represented before the Court by Mr Hróbjartur Jonatansson, a lawyer practising in Reykjavík.
The Icelandic Government (“the Government”) were represented by Mrs Ragna Árnadóttir, as Agent.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 1 July 2005 an indictment was issued against Mr J.J. (the founder of a supermarket chain, Bonus, from which a multinational company the Baugur Group had originated), his son Mr J.A.J., Chief Executive Officer of Baugur Group, his daughter Ms K. and Mr T.J., a former Deputy Chief Executive Officer of the Group. It resulted from a criminal investigation instigated following a complaint by a Mr Jón Gerald Sullenberger in the United States of America, a former colleague of J.A.J. - Chief Executive Officer of the Baugur Group.
The Baugur Group was a major shareholder in 365-prentmiđlum (365 Print Media Pvt. Ltd), which was the publisher of, inter alia, Fréttablađiđ, a national newspaper in Iceland.
At the material time there was an ongoing public debate in Iceland relating to allegations that undue influence had been exerted by prominent figures on the most extensive criminal investigations ever carried out in Iceland.
On 24, 25 and 26 September 2005 Fréttablađiđ published, without the applicant’s knowledge or consent, a number of e-mail communications which she had sent to and received from other named persons. The disputed material, consisted of direct quotations or paraphrasing of e-mail exchanges, dating back to the years 2002 and 2003, between Jón Gerald Sullenberger, the applicant and Styrmir Gunnarsson, former editor of another newspaper, Morgunblaðið, and between the applicant and T.J, then Deputy Chief Executive Officer of the Baugur Group. The communications related inter alia to Jón Gerald Sullenberger’s wishes to find a suitable lawyer to assist him in handing over to the police allegedly incriminating material he had in his possession and to represent him in a future court case against the leaders of the Baugur Group; Styrmir Gunnarsson acting as an intermediary between Jón Gerald Sullenberger and Supreme Court Advocate Jón Steinar Gunnlaugsson; the applicant’s recommendation to Jón Gerald Sullenberger that he choose Jón Steinar Gunnlaugsson; arrangements discussed between the applicant and Styrmir Gunnarsson on the handing over of material to the tax authorities; the applicant’s suggestion to him that he interview Jón Gerald Sullenberger. In relation to the recommendation of Jón Steinar Gunnlaugsson, reference was made to Kjartan Gunnarsson, managing Director of the Independence Party.
The disputed publication also included information about the applicant’s own financial situation and claims, her suggestion to Styrmir Gunnarsson that the interview with Jón Gerald Sullenberger should not take place until her own claims had been honoured; her claims against J.J. of the Baugur Group; her intention conveyed to T.J. to publicise the documents she held in her possession unless the Baugur Group honoured her claims; and T.J.’s suggestion to hand the documents over to the authorities if she thought that the Baugur Group had acted unlawfully.
By the time of the disputed publications, the applicant had become a well-known figure in Icelandic society; in September 2005 she had announced her candidacy for the forthcoming local council elections in Reykjavik, due to be held in the spring of 2006.
The applicant submitted that, without her knowledge or consent, the e-mails had been unlawfully obtained by a third party unknown to her. Before the national courts she submitted that she had previously ran a company Aktiverum ehf., which had operated a fitness centre under the name Planetpulse. The company had had a computer domain, where the applicant and other employees had been allocated e-mail addresses. She alone knew the password to her e-mail account at the company. In 2003 the company had been wound up and its assets sold, including the computer, or server, on which the employees’ e-mail accounts had been located. No information was available as to whether the administrator of the company’s estate had taken measures to delete e-mails from the server before it was sold. Whilst the materials in question had been printed from her e-mail account in July or August 2005, the computer which she had used in 2002 had long since become inoperative.
According to the applicant, after the first publication on 24 September 2005, she demanded Fréttablađiđ’s editor to discontinue further publications and to hand the e-mails over to her, but the editor refused. According to the editor, the applicant had only asked whether his intention was to continue publishing, to which he had responded in the affirmative. She had not asked to have further publication stopped or to have the material handed over to her.
On 29 September 2005, the applicant requested the Reykjavík District Commissioner to issue an injunction (sections 24(1) and 26 of the Seizures, Injunctions (Etc.) Act, No. 31/1990) against 365-prentmiðlar ehf, restraining the latter from “publishing [the applicant’s] private materials in the daily newspaper ‘Fréttablaðið’ or in other media owned by the respondent, in part or in their entirety, by means of direct or indirect quotation, irrespective of whether the materials involved were e-mails of which the plaintiff was the sender or the recipient, or other such personal private documents of the plaintiff which the respondent had in its keeping.”
The applicant further requested that the District Commissioner remove from the respondent all the aforementioned private materials which the respondent had in its possession and which had been used, or which were evidently intended for use, in the actions in respect of which the injunction was being requested (section 25 (2)).
In addition, the applicant requested that the injunction be imposed without prior notice and served at the respondent’s business premises (section 26 and item 2 of section 21 (3) of the Enforcement Measures Act).
On 30 September 2005 the District Commissioner, without prior notice and with immediate effect, imposed the requested injunction against further publication and urged the respondent to hand over all the material as requested by the applicant. Fréttablaðið’s news editor, Sigurjón M. Egilsson affirmed that he had the documents in question in his possession and handed them over to the District Commissioner, who took them into his custody. The respondent’s lawyer declared that he accepted the release of the materials and met the applicant’s demands.
The above injunction was imposed temporarily, pending the outcome of the proceedings described below.
According to the Government no information originating from e-mails pertaining to the applicant was published either pending the court proceedings or after. This is undisputed by the applicant.
In October 2005 the applicant instituted judicial proceedings before the Reykjavík District Court against the publisher, 365-prentmiðlar ehf., and K.J., Fréttablaðið’s editor. She requested the District Court to confirm the District Commissioner’s injunction and seizure of the material kept by the publisher but made no further claims in this respect. She did not request that the materials be handed over to her.
The applicant requested that the editor, K.J., be convicted and sentenced for having obtained access to her private materials, which had been stored in machine-readable (computerised) form, by trickery or another similar unlawful method, and had pried into their contents, in violation of Article 228 of the Penal Code. She also requested that he be convicted and sentenced under Article 229, pursuant to which any person who publicly disclosed the private affairs of another person without sufficient justification shall be liable to pay a fine or be sentenced to a term of up to one year’s imprisonment. In addition, she sought an order against both defendants requiring them to pay her compensation for non-pecuniary damage under, inter alia, section 26 of the Tort Damages Act No. 50/1993.
By a judgment of 14 December 2005 the District Court rejected the applicant’s action on every point.
In her appeal to the Supreme Court the applicant dropped her claims under Article 228 (1) and (3) and instead relied on Article 228 (2); she omitted to pursue her claims of violations of the Personal Data Act no. 77/2000 and the Telecommunications Act no. 81/2003 which had been rejected by the District Court; otherwise she maintained her claims before the latter.
On 1 June 2006, the Supreme Court upheld the District Court’s judgment, giving the following reasoning:
“III
As is stated above, on 30 September 2005 the appellant had an injunction imposed on the publication by the defendant, 365-prentmiðlar ehf., “of the injunction plaintiff’s private materials in the newspaper Fréttablaðið or in other media owned by the injunction respondent, in part or in their entirety, through direct or indirect quotation, irrespective of whether the materials involved were e-mails of which the injunction plaintiff is the sender or the recipient, or other such personal private documents of the plaintiff which the defendant had in its keeping.
Following this, she brought a legal action by a writ of summons issued by the president of the Reykjavík District Court on 6 October 2005, the case being registered on 11 October 2005. In the writ issued by the District Court, the plaintiff made the demand that the injunction be confirmed, and also that the court confirmed the decision by the District Commissioner to seize materials in the keeping of the defendant, 365-prentmiðlar ehf. No demand was made, on the other hand, regarding the rights in respect of which the appellant had sought temporary protection under the injunction, nor that the aforementioned materials be handed over to her. In this respect, the appellant’s demands before the Supreme Court, which are similar, are at variance with the rule of the second paragraph of Article 36 of the Act No. 31/1990, which states that a court judgment confirming both an injunction and the rights which it is designed to protect are to be sought in one and the same action. Nevertheless, this flaw in the plaintiff’s claim is not sufficient, in itself, to result in the dismissal of the case. On the other hand, the plaintiff must content herself with the fact that in this case, the Court’s resolution will extend solely to whether the formal and material conditions for confirming the injunction obtain.
As has been stated above, the plaintiff applied, in her request for an injunction, to have the defendant, 365-prentmiðlar ehf., prevented from publishing matter from unspecified private materials of hers, in their entirety or in part, and irrespective of whether this were done through direct or indirect quotation. Even though the plaintiff sought to define the content of her demand more precisely by stating that this applied to e-mails which she had either sent or received, and other similar personal private documents, no precise statement was made as to whether her demand covered all matters appearing in these materials, irrespective of whether they were generally known or corroborated by other available sources. No distinction was made in her demand between materials originating from the appellant herself or directed to her by those who sent her messages, and materials which had nothing to do with her but nevertheless had come into her possession. No further explanation was given, in the appellant’s injunction request, of what was meant by the words “other such personal private documents,” and no evidence has been revealed to suggest that such documents came into the possession of the defendant, 365-prentmiðlar ehf. No attempt was made to define in further detail what matters these documents were considered to refer to. Under the circumstances, it was not possible to impose an injunction which it would be possible to maintain, in terms of its content, under the rules of section 32 of the Act No. 31/1990 unless, as appropriate, the appellant had specified her demand in further detail at the time when the injunction was imposed and it came to light what materials this defendant had in its possession (see the second paragraph of section 31 of the same Act). The appellant’s request for an injunction was thus both too broad and too indefinite for it to be possible to grant it. In the light of these considerations, the Court has no alternative but to reject the appellant’s demand that it confirm the injunction.
According to the established facts of the case, the District Commissioner has held in his cusotdy the materials that were removed from the keeping of the defendant, 365-prentmiðlar ehf., when the injunction was imposed (see the second paragraph of section 25 of the Act No. 31/1990). Under Section VI of the same Act, it is not possible to seek a separate judgment confirming such a measure taken when an injunction is imposed: a ruling on the lawfulness of such a measure is to be made in connection with the validation of the measure as a whole. The appellant has not submitted any claim in this case for the Court to adjudicate on her right to have these materials handed over to her from the keeping of the District Commissioner. The question therefore cannot be entertained further in this case.
IV
Before the District Court, the appellant demanded that the defendant, K.J., be punished for violations of Article 228 of the General Penal Code. In the writ of summons it was stated that the defendant had violated this provision by obtaining access to the appellant’s private materials, which had been stored in machine-readable form, by trickery or another similar unlawful method, and pried into their contents. This description in the writ of summons accords with the provision of the first paragraph of Article 228, which prescribes punishment for such conduct; that provision lists letters and other materials containing the private affairs of another person. Before the Supreme Court, the appellant has dropped her demand for punishment under the first and third paragraphs of Article 228. She demands that the defendant be punished under the second paragraph of Article 228, which prescribes punishment for rendering useless, or concealing, the private materials listed in the first paragraph of the same Article. In the writ of summons before the District Court, the defendant’s alleged conduct was not described in such a way that this provision could apply to it and the demand for punishment could be based on it (see item d of the first paragraph of section 80 of the Act No. 91/1991). It follows immediately from this reason that the defendant cannot be punished under the second paragraph of Article 228 of the General Penal Code.
The appellant also bases her demand that the defendant, K.J. be punished on Article 229 of the Penal Code, under which any person who publicly discloses the private affairs of another person in the absence of sufficient reason to justify the action, is to be subjected to a fine or up to one year’s imprisonment. In connection with this demand, the Court must resolve the question of whether the coverage in Fréttablaðið concerned the appellant’s private affairs, which were to be found in the aforementioned computer documents, and if so, whether the newspaper disclosed them publicly in the absence of sufficient reason to justify doing so.
It has been mentioned above that the coverage in the newspaper was based, to some extent, on correspondence between other persons, which passed to the appellant, and from her to the defendant, 365-prentmiðlar ehf. This correspondence contained nothing at all about the appellant, and the coverage in the newspaper that was based on it therefore did not constitute any violation against her. For the most part, the coverage in the newspaper was based on correspondence between the appellant herself and other persons which was no longer stored in her computer, but had come into the possession of other parties in printed form. Mention has been made above of the subject of that coverage, which involved the planning of charges against the managers of Baugur Group Ltd; the newspaper’s coverage also focussed on e-mail correspondence between the appellant and another person concerning her financial claims against one of the representatives of the company. Taking this into consideration, the Court must concur with the appellant that Fréttablaðið’s writings about her financial affairs concerned her private affairs in the sense of Article 229 of the General Penal Code, as did those parts of these writings which reported on the appellant’s encouragement of, and her other involvement in, plans to bring charges against named individuals.
Then there arises the argument by the defendants that there was sufficient reason to justify the publication of coverage that drew on the aforementioned e-mail correspondence and contained, amongst other things, the appellant’s private affairs. In adjudicating on this, the Court must take into consideration the fact that when Fréttablaðið’s coverage appeared, matters connected with a charge concerning alleged criminal conduct by the managers of Baugur Group Ltd had for a long time featured prominently in public discussion in Iceland and been the subject of intense controversy resulting, amongst other things, from a police search of the premises of the company in August 2002 and a charge against some of its managers in July 2005. The newspaper’s coverage contained material that was of public interest and concerned a case that had been the subject of great controversy in Icelandic society. Even though the coverage in the newspaper had included disclosures concerning the appellant’s financial affairs, these affairs were, says the defendant, so closely intertwined with the news material as a whole that it was not possible to distinguish between them.
The Court concurs with the defendant that no greater encroachment was made on the appellant’s private life than was unavoidable in a public discussion of a matter that was of concern to the public. Taking all this into consideration, the Court can accept that sufficient reason existed to justify the publication of this coverage by the newspaper. The defendant, K.J., cannot be punished under Article 229 of the General Penal Code.
Finally, the appellant demands that the defendants be ordered, jointly, to pay her compensation for non-pecuniary damage amounting to ISK 5,000,000 under Section 26 of the Tort Damages Act, No. 50/1993 (see section 13 of the Act No. 37/1999). The Court reached the conclusion above that the limits of permitted expression were not overstepped in the coverage in Fréttablaðið. As is described in the summing-up in the District Court judgment, this claim has not been presented in such a way as to give occasion for accepting it on other grounds. The defendants must therefore be acquitted of this demand”.
On 26 September 2005 another newspaper, DV, went further than other media in its discussion of the dealings between the applicant and the editor of Morgunblaðið, in connection with the reporting on their e-mail correspondence.
The applicant brought separate court proceedings against DV’s editors seeking their conviction and sentence under Article 229 of the Penal Code, for having, in their newspaper report, disclosed her private affairs without sufficient reason.
The editors argued that the news report in question was of interest and concern to the public in view of the public discussion about the connection between the persons referred to in the report and the Baugur case. At the same time, they pointed out that the applicant was a candidate in the primary round of selection of candidates for the Independence Party for the elections to the Reykjavík City Council, and that Styrmir Gunnarsson had been an influential figure in the Independence Party and Icelandic politics in general for many decades. When such persons were connected by particular bonds at the same time as they were working for the advancement of a matter in which they were interested, in order to promote justice, as they saw it, it was important for the normal formation of opinion that the public be allowed to know about the connections that existed between the persons in question.
The Reykjavík District Court rejected these arguments by a judgment of 8 December 2006, and convicted both editors of a violation of the applicant’s rights under Article 229 of the Penal Code and sentenced them each to a fine of ISK 150,000 and to pay her ISK 500,000 in compensation for non-pecuniary damage. On an appeal by the editors, the Supreme Court, by a judgment of 4 October 2007, upheld the District Court judgment.
Articles 228 and 229 of the General Penal Code, No. 19/1940 may be found in its Chapter XXV on “Defamation and Offences against the Inviolability of Private Life”. These provisions read:
Article 228
“Any person who pries into letters, documents, diaries or other comparable materials containing information about another person’s private affairs, having gained access to the materials by trickery, opened letters, entered a locked container or employed another similar method, shall be liable to a fine or up to one year’s imprisonment. The same punishment shall apply to a person who unlawfully obtains access to other persons’ data or programs stored in a computerised form.
The same punishment shall apply to the destruction or concealment of the private materials referred to in the first paragraph of this Article.
Any person who pries into containers belonging to another person without sufficient reason shall be liable to up to three months’ imprisonment.”
Article 229
“Any person who publicly discloses the private affairs of another person in the absence of sufficient reason to justify the action shall be liable to a fine or up to one year’s imprisonment.”
Section 26 of the Tort Damages Act, No. 50/1993 read:
Article 26
“A person who
a. intentionally, or through gross negligence, causes bodily harm or
b. is responsible for an unlawful act of malice against the freedom, peace, honour or person of another person may be made to pay compensation for non-financial damage to the person against whom the offence was committed.
A person who, intentionally or through gross negligence, causes the death of another person, may be made to pay the spouse, children or parents of that person compensation for non-financial damage.”
The applicant drew attention to section 47(5) of the Telecommunications Act, no. 81/2003. Chapter IX on the protection of personal data and the sanctity of private life, read:
“Any person who by coincidence, mistake or without special authorisation receives telegrams, pictures or other telecommunicated signs or symbols, or listens to telephone conversations may not write down any such material or use them in any manner. Additionally, he should notify the sender that data were incorrectly received by him. It is obligatory to exercise the utmost confidentiality in such instances”
According to section 74 violations of the Act were punishable by fines or imprisonment.
The applicant also pointed to sections 5 and 7 of the Act on the Protection of Privacy as regards the Processing of Personal Data, no. 77/2000.


ITEMID: 001-113953
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: MILER v. THE CZECH REPUBLIC
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Karel Jungwiert;Paul Lemmens
TEXT: 1. The applicant, Mr Roman Miler, is a Czech national who was born in 1964. He is represented before the Court by Ms K. Samková, a lawyer practising in Prague. The respondent Government are represented by their Agent, Mr V.A. Schorm, from the Ministry of Justice.
2. The applicant lived in Warsaw, Poland from 1993 onwards. He lived there with his wife and two children, who are all Polish nationals. The children are attending school there.
3. In 2000 he was extradited from Poland to the Czech Republic for a criminal prosecution. On 19 March 2004 the Prague Regional Court found the applicant guilty of attempted murder and sentenced him to fifteen years’ imprisonment. He is serving his prison sentence in Mírov Prison in the Czech Republic.
4. The applicant has been trying to be transferred to a Polish prison so he can be closer to his family who, he states, are living in impoverished conditions and do not have means to travel to the Czech Republic. Also, his son’s mental health has been damaged by his not being able to see his father.
5. He sent several requests in that regard to the Ministry of Justice. On 6 May 2004, 17 July 2007 and 17 May and 2 August 2010 the Ministry replied by letter, giving negative responses. It firstly reasoned that the applicant was a Czech national and thus it would not be possible to transfer him to Poland. In another letter, on 14 December 2010, the Ministry reasoned that Czech law allowed such a transfer only exceptionally and that the fact that the applicant’s family was living in Poland was not such an exceptional circumstance.
6. The applicant is in contact with his family by regular telephone calls, allowed for ten minutes once a week, and unrestricted written correspondence. The family has not been able to visit him yet, according to the applicant, mainly because of the distance, poor health and lack of funds.
7. On an unspecified date the applicant applied for Polish nationality and simultaneous revocation of his Czech nationality. It seems that these proceedings are pending.
8. The applicant approached various other bodies, including the ombudsman, the Parliament and numerous non-governmental organisations, about his situation.
9. Under section 72(1)(a), a constitutional appeal may be lodged by any natural or legal person who claims that a final decision given in proceedings to which he or she was a party, or a measure or any other action taken by a public authority, has infringed his or her fundamental rights or freedoms as guaranteed by a constitutional law.
10. Section 82(3) provides that when the Constitutional Court upholds a constitutional appeal it must either set aside the impugned decision by a public authority or, where the infringement of a right guaranteed by the Constitution is the result of an interference other than a decision, forbid the authority concerned to continue to infringe the right and order it to reestablish the status quo if that is possible.
11. In a judgment no. III. ÚS 62/95 of 30 November 1995 it defined an “other action taken by a public authority” in section 72 of the Act on the Constitutional Court largely as a one-off, illegal and unconstitutional attack by such an authority on constitutionally guaranteed fundamental rights (freedoms) that, at the time of the attack, posed a continuous threat to an existing legal situation, while such an attack itself was not an expression (result) of a decision-making power of the authority, and as such fell outside the usual review proceedings.
12. In a decision no. I. ÚS 690/2000 of 11 April 2001 it held that a primary feature of “other action taken by a public authority” in section 72 of the Constitutional Court Act must be that the interference was still going on at the time of the decision of the Constitutional Court.
13. In its judgment no. III. ÚS 16/96 of 6 January 1997 it held that for admissibility of a constitutional appeal under section 72(1)(a) it was immaterial how the challenged act of an administrative authority had been labelled. What mattered was only if the administrative authority had by that act interfered with an individual’s legal standing in an authoritative and possibly final way. The substantive content of an act was always decisive, rather than its formal designation.
14. In its judgment no. Pl. ÚS 36/01 of 25 June 2002 it held that the ratified and promulgated international agreements on human rights and fundamental freedoms, including the Convention, were part of Czech constitutional law.


ITEMID: 001-97836
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: PETUHOVS v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: The applicant, Mr Konstantins Petuhovs, is a Latvian national who was born in 1977 and lives in Berlin. He was represented before the Court by Mr A. Funck, a lawyer practising in Berlin.
On 15 May 2008 the applicant, assisted by an interpreter, was questioned by the Berlin police in criminal investigation proceedings against him. On the same day he was brought before the investigating judge who issued an arrest warrant, charging the applicant with robbery and dangerous bodily injury. The warrant was translated and a copy was handed to the applicant.
On 26 May 2008 the applicant and an accomplice were indicted for joint robbery and dangerous bodily injury. The account of the offence was essentially the same as in the arrest warrant with two exceptions: The arrest warrant mentioned that the victim was knocked down a the second time by the co-accused immediately following the first attack by the applicant, whereas the indictment alleged that the victim was able to take a few steps before being knocked down again. Furthermore, the arrest warrant only mentioned that a bag with a wallet was snatched from the victim, whereas the indictment talked about a blue bag with 25 euros.
On 9 June 2008 the District Court appointed counsel for the applicant and assigned an interpreter for their conversations. Meetings between counsel and the applicant, assisted by an interpreter, were held on 6 June, 7 July, 13 August and 19 September 2008.
After the proceedings against the applicant had been severed and the main proceedings opened, on 18 July 2008 the District Court submitted a decision to refer (Vorlagebeschluss) to the Regional Court, finding that the circumstances of the offence might amount to aggravated robbery, and in view of the then higher expectation of punishment might warrant the referral of the proceedings to the higher court. The Regional Court assumed the proceedings after the defence had submitted observations.
At the trial on 24 September 2008 counsel for the defence applied for the proceedings to be stayed for the reason that the applicant had not received a translation of the indictment of 26 May 2008 which, according to counsel for the defence, was essential for him to prepare his defence. After deliberations the Regional Court rejected the application, arguing that the arrest warrant, which had been translated, was identical to the indictment and had thus informed the applicant in detail of the nature and cause of the accusation. Furthermore, it had to be assumed that counsel for the defence had discussed the nature and cause of the straightforward accusation with the applicant at one of their several meetings. The Regional Court held that under these circumstances an oral translation had to be considered sufficient.
The trial then continued with the reading and the translation of the indictment. After hearing the applicant’s pleading to the charges and five witnesses the Regional Court found the applicant guilty of aggravated robbery and dangerous bodily injury. He was sentenced to 4 years’ imprisonment.
The applicant’s appeal on points of law, based on the lack of a written translation of the indictment, was dismissed by the Federal Court of Justice on 22 April 2009 as ill-founded.
On 19 June 2009 the Federal Constitutional Court declined to admit the applicant’s constitutional complaint for examination. It held the complaint to be inadmissible arguing that the prior appeal on points of law had been inadmissible.


ITEMID: 001-91848
LANGUAGEISOCODE: ENG
RESPONDENT: GRC
BRANCH: GRANDCHAMBER
DATE: 2009
DOCNAME: CASE OF GOROU v. GREECE (No. 2)
IMPORTANCE: 2
CONCLUSION: Preliminary objections dismissed (ratione materiae);No violation of Art. 6-1;Violation of Art. 6-1;Non-pecuniary damage - award
JUDGES: Alvina Gyulumyan;András Sajó;Anatoly Kovler;Christos Rozakis;David Thór Björgvinsson;Dean Spielmann;Elisabeth Steiner;Françoise Tulkens;Giorgio Malinverni;Ineta Ziemele;Isabelle Berro-Lefèvre;Josep Casadevall;Khanlar Hajiyev;Loukis Loucaides;Mark Villiger;Nicolas Bratza;Peer Lorenzen;Renate Jaeger;Sverre Erik Jebens;Vladimiro Zagrebelsky;Volodymyr Butkevych;Zdravka Kalaydjieva
TEXT: 10. The applicant is a civil servant in the Ministry of National Education. At the relevant time she was on secondment to the Bureau for the primary education of Greek children abroad, in the city of Stuttgart. On 2 June 1998 she filed a criminal complaint for perjury and defamation against S.M., with an application to join the proceedings as a civil party, but without claiming compensation. S.M., a civil servant in the same Ministry, was the applicant's immediate superior. She alleged in particular that, in connection with an administrative investigation opened against her, S.M. had stated that she did not observe working hours and did not get on well with her colleagues.
11. On 26 September 2001, when the case was heard before the Athens Criminal Court, the applicant reiterated her civil-party application, claiming 1,000 drachmas (about 3 euros) and adduced her arguments. On the same day, the Athens Criminal Court acquitted S.M. of the charges against him, finding that the applicant's allegations were unsubstantiated. In particular, after examining all the evidence, the court considered that the offending remarks had been truthful and that it had not been the defendant's intention to defame or insult the applicant (judgment no. 74941/2001).
12. On 5 August 2002 this judgment was finalised and entered in the register of the Criminal Court.
13. On 24 September 2002 the applicant requested the public prosecutor at the Court of Cassation to lodge an appeal on points of law against the Athens Criminal Court's judgment no. 74941/2001, under Article 506 § 2 of the Code of Criminal Procedure. She alleged, in particular, that the judgment did not contain sufficient reasoning.
14. On 27 September 2002 the public prosecutor at the Court of Cassation returned the applicant's letter with the following handwritten comment on the actual request: “There are no legal or well-founded grounds of appeal to the Court of Cassation”.
15. The Code of Criminal Procedure contains the following relevant provisions:
“(1) The present Code specifies the instances in which a judge gives a decision or makes an order.
Orders shall also be made by the public prosecutor where he has a statutory obligation to take measures during a judicial investigation in a case or when hearings have been adjourned by the court ...”
“Judgments, orders of the chamber of judges, and orders of the investigating judge or of the public prosecutor shall give specific and precise reasons ...
...
Even where it is not required by a specific provision, all judgments and orders shall include reasoning, whether they are final or interlocutory and whether or not they depend on the discretion of the judge hearing the case.”
“Remedies may be used solely by persons who are expressly afforded such right by law ...”
“(1) ... an appeal on points of law may be lodged (a) by the defendant; (b) by a third party whose civil liability has been engaged in the conviction judgment and who has acknowledged such liability; (c) by a civil party named in the conviction judgment, but only in respect of that part of the judgment in which he or she is awarded damages or is recognised as being entitled to compensation, or in which his or her claims have been dismissed as being devoid of legal basis; (d) by the public prosecutor.
The Principal Public Prosecutor at the Court of Cassation shall be entitled to appeal on points of law against any decision within the time-limit provided for in Article 479 § 2 ...”
“The quashing of an acquittal on points of law may be sought: (a) by the defendant, if he or she has been acquitted for expressing remorse; (b) by the principal public prosecutor ... if the acquittal has been the consequence of a misinterpretation of a substantive criminal-law provision within the meaning of Article 510 of the Code of Criminal Procedure; (c) by the person who laid the charge or the complainant, if he or she has been ordered to pay damages and costs.”
“(1) ... The Public Prosecutor at the Court of Cassation shall summon the appellant in cassation and other parties to the proceedings, by a summons served on them in accordance with Articles 155 to 161 and within the time-limit provided for in Article 166, before the Court of Cassation or its plenary assembly ...
(2) Where the appeal on points of law has been lodged by a public prosecutor, he shall not be summoned but shall be represented by the public prosecutor at the Court of Cassation.
...”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-93875
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF TERESHCHENKO v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Article 1 of Protocol No. 1 - Protection of property
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Stanislav Shevchuk;Zdravka Kalaydjieva
TEXT: 4. The applicant was born in 1949 and lives in the town of Zhovti Vody, Ukraine.
5. The applicant and her husband worked for a State company, open joint stock company Electrongaz, (“the company”). By two separate judgments of 12 May 1999, the Zheltovodsky Court awarded the applicant and her husband 3,465.53 and 659.45 Ukrainian hryvnas (UAH) respectively. On 10 October 2003 the applicant’s husband died. The applicant inherited the award against the company made by the court in his favour.
6. In a letter of 3 January 2008 the applicant reported that both judgments had been enforced in full in May 2007.
7. The relevant domestic law regarding enforcement of court decisions is summarised in the judgment of Voytenko v. Ukraine (no. 18966/02, §§ 20-25, 29 June 2004).
VIOLATED_ARTICLES: P1
VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-92767
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF SZULUK v. THE UNITED KINGDOM
IMPORTANCE: 1
CONCLUSION: Violation of Art. 8;Non-pecuniary damage - award
JUDGES: Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: 5. The applicant was born in 1955 and is currently in prison in Staffordshire.
6. On 30 November 2001 the applicant was sentenced by a Crown Court to a total of fourteen years’ imprisonment for conspiracy to supply Class A drugs and two offences of possession of a Class A drug with intent to supply.
7. On 6 April 2001, while on bail pending trial, the applicant suffered a brain haemorrhage for which he underwent surgery. On 5 July 2002 he underwent further surgery. Following his discharge to prison, he required monitoring and was required to go to hospital every six months for a specialist check-up by a neuro-radiologist.
8. In 2002 the applicant was held in a high-security prison which held Category A (high-risk) prisoners as well as Category B prisoners such as himself. As a result, he fell within the provisions of a general order, Prison Service Order (PSO) 1000, which applied to all prisoners of whatever security category who were being held in a unit which held Category A prisoners (see paragraph 28 below).
9. The applicant wished to correspond confidentially with his external medical specialist to ensure that he would receive the necessary medical treatment and supervision in prison. He expressed his concerns about his medical correspondence with his external medical specialist being read and applied to the prison governor for a direction that such correspondence should be accorded confidentiality.
10. On 18 September 2002 the governor of the prison in which the applicant was being detained agreed to the applicant’s request. It was decided that the applicant’s medical correspondence would not be read provided that certain conditions were met. All outgoing and incoming mail was to be marked “medical in confidence”. Outgoing correspondence would be checked to ensure that it was being sent to a nominated address and incoming mail was to be marked with a distinctive stamp of the relevant health authority.
11. The prison governor subsequently reconsidered his decision after seeking advice from HM Prison Service Headquarters. On 28 November 2002 the prison governor informed the applicant that he had been advised that it was necessary to examine his medical correspondence for illicit enclosures. All correspondence between the applicant and his external medical specialist would be directed, unopened, to the prison medical officer. The latter would examine the content of the envelope in order to ascertain its medical status and then reseal it. Incoming and outgoing correspondence would then be sent to the applicant and his external medical specialist respectively.
12. The applicant contested the decision to monitor his medical correspondence. He was concerned that his attempts to confirm that he was receiving adequate treatment in hospital might be regarded by the prison medical officer as criticism and that this might inhibit his relationship with his external medical specialist.
13. On 4 August 2003 the applicant applied for leave to apply for judicial review of the prison governor’s decision of 28 November 2002. On 20 February 2004 the presiding High Court judge, Mr Justice Collins, allowed the applicant’s claim for judicial review.
14. The Prison Service had submitted, inter alia, that it would be difficult to make the necessary arrangements to permit medical correspondence to remain confidential. They argued that there were a large number of health bodies with which a prisoner might wish to correspond and that some health bodies might lack franking machines that would enable prisons to identify the authenticity of the sender.
15. Mr Justice Collins concluded that there were exceptional circumstances in the applicant’s case. The exceptional circumstances were said to be the life-threatening nature of the applicant’s condition and his desire to ensure that his treatment in prison did not affect him adversely. The applicant, understandably, wanted to obtain reassurance from the medical specialist who was involved in treating him and from whom he required continual medical care, in the form of biannual specialist observations. Mr Justice Collins also found that the initial decision of the prison governor to enable the applicant to correspond on a confidential basis with his external medical specialist indicated that it was reasonable to permit such confidential correspondence. The evidence of the Prison Service as to the practical problems involved in making arrangements to enable confidential medical correspondence were not directly material in an exceptional case such as the present one.
16. In the circumstances, and emphasising that this was a case which turned on its own exceptional facts, Mr Justice Collins considered it appropriate to quash the prison governor’s decision of 28 November 2002. He granted the applicant a declaration that “the governor of whatever prison the [applicant] resides [in] should make a decision in accordance with the principles made in light of this judgment”.
17. On 29 October 2004 the Court of Appeal allowed the appeal by the Secretary of State and the prison governor. Lord Justice Sedley gave the judgment of the court. It was noted that there was no dispute that the reading of prisoners’ correspondence was governed by law, and that it was directed to the prevention of crime and the protection of the rights and freedoms of others. The issue to be decided was whether, in the language of Article 8 § 2 of the Convention, the reading of the applicant’s correspondence was proportionate. While the prison governor’s initial decision to allow confidentiality to the applicant’s medical correspondence with his external medical specialist strongly suggested that its exemption from Chapter 36.21 of PSO 1000 would be a perfectly reasonable course, the onus still remained on the applicant to establish that anything more invasive would constitute a disproportionate interference with his Article 8 rights.
18. The Court of Appeal concluded that although the procedure set out in the prison governor’s letter of 28 November 2002 amounted to an interference with the applicant’s right to respect for his correspondence, the interference was justified and proportionate under Article 8 § 2 of the Convention. It considered that although it was of course possible to verify the existence, address and qualifications of the applicant’s external medical specialist (whose bona fides was not in question), there was no way of ensuring that the latter would not be intimidated or tricked into transmitting illicit messages. While the same was true of, for example, the secretarial staff of members of parliament (MPs), the importance of unimpeded correspondence with MPs outweighed the risk. By contrast, as regards correspondence with doctors, the prisoner’s health was the concern and the immediate responsibility of the Prison Medical Service. Though it may well be the case that allowing the prison medical officer to read the prisoner’s correspondence with an outside medical practitioner might lead the former to “encounter criticism of his own performance”, it was inherently unlikely that this would carry the same degree of risk that might attend the reading by a discipline officer of a letter of complaint to the Prisons Ombudsman. Moreover, if it related to the prisoner’s well-being it was probable that the prison medical officer ought in any event to know about it.
19. The Court of Appeal concluded that the monitoring of the applicant’s medical correspondence was a proportionate interference with his Article 8 rights, although it did not exclude the possibility that in another case it might be disproportionate to refuse confidentiality to medical correspondence in the prison context. The Court of Appeal based its conclusion on the following factors. Firstly, the monitoring of the applicant’s medical correspondence answered legitimate and pressing policy objectives which were clearly stated in Chapter 36.1 of PSO 1000 (see paragraph 28 below). Secondly, short of withdrawing all scrutiny, it considered that there was no less invasive measure available to the prison service. Thirdly, the reading of the applicant’s medical correspondence which was limited to the prison medical officer was not in its view excessive. Fourthly, the process by which the measure had been decided upon was not found to be arbitrary. In particular, it had not been the result of the rigid application of a policy. The withdrawal of monitoring had not only been considered but had been implemented until, upon reconsideration, monitoring had been resumed. The interference in question had not denied the essence of the applicant’s Article 8 rights as it related to one correspondent only (the external medical specialist) and it confined the interference to a medically qualified reader (the prison medical officer). It was recognised that there was an inescapable risk of abuse, for example, if the applicant’s prison life or treatment was made more difficult because of what he was observed to be writing. However, the risk, having been minimised by virtue of confining surveillance to the prison medical officer, was outweighed by the above-mentioned factors.
20. On 18 April 2005 the applicant’s petition for leave to appeal was refused by the House of Lords on the ground that the petition did not raise an arguable point of law of general public importance.
21. Since 22 May 2007 the applicant has been located in a Category B prison in Staffordshire.
22. The Secretary of State is responsible for the management of the prison system in England and Wales (Prison Act 1952, sections 1 and 4).
23. Until November 2007 each prison was required to appoint a medical officer (Prison Act 1952, section 7(1)). The medical officer was a prison officer who had to be a registered medical practitioner (Prison Act 1952, section 4). This requirement was removed by section 25(1) of the Offender Management Act 2007 which came into force on 1 November 2007. Prison health care is now generally integrated with, and commissioned by, the National Health Service (NHS).
24. Section 47(1) of the Prison Act 1952 authorises the Secretary of State to make rules for the regulation and management of prisons and for the classification, treatment, employment, discipline and control of persons required to be detained therein. Such rules are made by statutory instrument, laid before Parliament, and are subject to annulment in pursuance of a resolution of either House of Parliament (Prison Act 1952, section 52(1) and the Criminal Justice Act 1967, section 66(4)).
25. Prisoners are classified in accordance with directions of the Secretary of State (Prison Rules SI 1999/728 rule 7(1)). Prisoners are classified in accordance with PSO 0900. Paragraph 1.1.1 of PSO 0900 contains the definitions of the four categories of prisoner (A, B, C and D). Category A is applied to prisoners whose escape would be highly dangerous to the public or the police or the security of the State, no matter how unlikely that escape might be, and for whom the aim must be to make escape impossible. Category B is applied to prisoners for whom the very highest conditions of security are not necessary, but for whom escape must be made very difficult.
26. Rule 34 of the Prison Rules is headed “Communications Generally” It provides as relevant:
“(1) Without prejudice to sections 6 and 19 of the Prison Act 1952 and except as provided by these Rules, a prisoner shall not be permitted to communicate with any person outside the prison, or such person with him, except with the leave of the Secretary of State or as a privilege under rule 8.
(2) Notwithstanding paragraph (1) above, and except as otherwise provided in these Rules, the Secretary of State may impose any restriction or condition, either generally or in a particular case, upon the communications to be permitted between a prisoner and other persons if he considers that the restriction or condition to be imposed –
(a) does not interfere with the Convention rights of any person; or
(b) (i) is necessary on grounds specified in paragraph (3) below;
(ii) reliance on the grounds is compatible with the Convention right to be interfered with; and
(iii) the restriction or condition is proportionate to what is sought to be achieved.
(3) The grounds referred to in paragraph (2) above are –
(a) the interests of national security;
(b) the prevention, detection, investigation or prosecution of crime;
(c) the interests of public safety;
(d) securing or maintaining prison security or good order and discipline in prison;
(e) the protection of health or morals;
(f) the protection of the reputation of others;
(g) maintaining the authority and impartiality of the judiciary; or
(h) the protection of the rights and freedoms of any person.
...
(8) In this rule –
...
(c) references to Convention rights are to the Convention rights within the meaning of the Human Rights Act 1998.”
27. Rule 39 of the Prison Rules deals with correspondence with legal advisers and courts and provides that such correspondence may only be opened, read or stopped by the prison governor in accordance with the provision of that rule, namely when the governor has cause to believe either that the correspondence contains an illicit enclosure or that its contents endanger prison security or the safety of others or are otherwise of a criminal nature.
28. Chapter 36.1 of PSO 1000, which was applicable at the relevant time and which dealt with prisoner communications in connection with those who were in Category A prisons, or who were in prisons which held Category A prisoners, provided as follows:
“Prison management must provide facilities for prisoners to maintain contact with family and friends. Prisoners’ rights to respect for their private and family life and correspondence are also protected by Article 8 of the European Convention on Human Rights. The Prison Service’s duty to protect the public allows us to interfere in this privacy in order to minimise the possibility that, in communicating with the outside world, prisoners:
(i) plan escapes or disturbances;
(ii) jeopardise the security and good order of the prison;
(iii) engage in offences against criminal law or prison discipline;
(iv) jeopardise national security;
(v) infringe the rights and freedoms of others.”
29. Chapter 36.21 of PSO 1000 read:
“All correspondence, other than correspondence protected by PR39 [that is correspondence with legal advisors] or that with the Samaritans, must be read as a matter of routine in the following cases:
(i) all prisoners of whatever security category, held in a unit which itself holds Category A prisoners.”
30. Chapter 36.22 continued as follows:
“Routine reading is necessary in these cases in order to prevent escape and, in the case of Category A prisoners, in the interests of public safety. It is also necessary in preventing crime and disorder, for the protection of the rights and freedoms of others, and, in some cases, necessary in the interests of national security or the economic well being of the country.”
31. PSO 4411 is entitled “Prisoner Communications: Correspondence”. It came into operation on 5 September 2007. So far as is material to the present case it reflects the practice and procedure in operation from 2002 to 2004.
32. Special treatment was at the relevant time and still is given to various forms of correspondence apart from that with legal advisers, specifically covered by rule 39 of the Prison Rules and that with the Samaritans, specifically mentioned in Chapter 36.21 of PSO 1000. Correspondence with, inter alia, the courts, the Bar Council, the Law Society, the Criminal Cases Review Commission, the Office for the Supervision of Solicitors, the Office of the Parliamentary Commissioner, the Office of the Legal Services Ombudsman, the Probation Ombudsman, the Commission for Racial Equality and MPs are generally treated as confidential.
33. PSO 4411 introduced a new category of correspondence subject to confidential handling arrangements. Chapter 5.1 includes the Healthcare Commission as one of the bodies with which a prisoner is entitled to correspond confidentially. The Healthcare Commission is the independent watchdog for health care in England. It assesses and reports on the quality of services provided by the NHS and the independent health-care sector.
34. Chapter III, paragraph 34 of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) standards published in October 2006 states the following:
“While in custody, prisoners should be able to have access to a doctor at any time, irrespective of their detention regime ... The health-care service should be so organised as to enable requests to consult a doctor to be met without undue delay.
Prisoners should be able to approach the health-care service on a confidential basis, for example, by means of a message in a sealed envelope. Further, prison officers should not seek to screen requests to consult a doctor.”
35. Paragraph 50 of the CPT standards provides:
“Medical secrecy should be observed in prisons in the same way as in the community. ...”
VIOLATED_ARTICLES: 8


ITEMID: 001-76989
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF MÜRVET FİDAN AND OTHERS v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of P1-1;Not necessary to examine under Art. 6-1;Remainder inadmissible;Pecuniary damage - financial awards;Costs and expenses partial award - Convention proceedings
TEXT: 5. All of the applicants live in Baskil, Turkey.
6. On 19 July 1993 each of them brought separate actions before the Baskil Civil Court against the National Water Board. They alleged that their plots of land were illegally seized by the administration for a dam construction without any payment, and requested compensation.
7. On 18 November 1993 the court ruled that the cases should be characterised as compensation claims arising from de facto expropriations rather than claims for illegal seizures. The court established that a committee of experts had assessed the value of the expropriated land in advance and that the authorities had paid the resulting amounts to the owners registered in the local land registry. The court ordered the administration to pay the applicants an amount of increased compensation, plus interest at the statutory rate, starting from 1986 when the land was submerged in the waters of the dam.
8. On 6 October 1994 the Court of Cassation quashed these judgments, holding that the cases could not be characterised as compensation claims arising from expropriation. Upon the applicants' request, however, the Court of Cassation reversed its decision and held, on 10 March 1995, that the cases could in fact be characterised as compensation claims arising from expropriation. It proceeded to quash the judgments of the first-instance court only in respect of the date from which the statutory rate of interest began to run.
9. By decisions of 21 December 1995 and 25 January 1986, the Baskil Civil Court ordered the administration to pay the applicants a certain amount of compensation, plus interest running from 1986, despite the earlier rulings of the Court of Cassation regarding the starting date from which interest was to be calculated.
10. On 20 November 1996 the Plenary Court of Cassation quashed the judgments of the Baskil Civil Court. The same court rejected the applicants' rectification request on 2 May 1997.
11. On 9 October 1997 the Baskil Civil Court ordered the administration to pay the applicants 315,650,000, 297,439,800, 265,571,250, 404,680,000 and 708,190,000 Turkish liras (TRL) respectively, plus interest at the statutory rate running from 19 August 1993, the date on which the land was transferred to the National Water Board.
12. On 17 March 1998 the Court of Cassation upheld these judgments. On 2 April 1998 the Court of Cassation's rulings were served on the applicants.
13. On 9 December 1998 the administration paid TRL 934,027,000 to Ms Mürvet Fidan, 884,579,000 TRL to Mr Murat Fidan, TRL 790,746,000 to Mr Hikmet Fidan, TRL 1,190,092,000 to Ms Zehra Fidan and TRL 2,041,230,000 to Ms Elif Özbilge.
14. The relevant domestic law and practice are set out in the Akkuş v. Turkey judgment of 9 July 1997 (Reports of Judgments and Decisions 1997IV).


ITEMID: 001-99828
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF GRONMARK v. FINLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 8
JUDGES: Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: 5. The applicant was born in 1968 and lives in Mäntsälä.
6. The applicant was born out of wedlock. In 1969 her father R.J. was ordered, on the initiative of the social services and by a decision of a District Court (käräjäoikeus, tingsrätten), to pay child support until the applicant's 17th birthday.
7. On 1 October 1976 the Paternity Act came into force. The transitional provisions in the Implementing Act of the Paternity Act state that paternity proceedings with regard to a child born before the entry into force of the Act had to be initiated within five years, that is, before 1 October 1981. Moreover, no claim could be examined after the death of the father. No such restrictions exist for children born after the entry into force of the Paternity Act.
8. In 1985 the applicant's mother and R.J. agreed on one additional year of child support. The agreement was certified by the social services. The applicant attained majority in 1986.
9. R.J. died in November 1999 and the applicant found out that he had never been legally registered as her father. All of the parties had always been under the impression that paternity had been established when the duty to pay child support was ordered by the District Court.
10. In October 2000 the applicant brought a civil claim against R.J.'s legal heir and requested the Orimattila District Court to confirm the paternity. She stated that neither she nor her mother had known that they needed to bring a claim against R.J. to establish paternity, nor did they know that there was a time-limit. They further stated that the social services had been obliged by law to inform them of these issues. No such information had been given to them although the mother of the applicant's half-sister had been informed at the relevant time.
11. The District Court ordered DNA tests to be performed on the applicant, her mother and R.J.'s two brothers. The test was conclusive as to the paternity, with 99.8 % certainty.
12. On 12 April 2001 the District Court dismissed the applicant's claim. The court stated that the transitional provision with regard to the death of the father was no longer relevant in the case as modern technology enabled testing that had not been possible in the 1970s when the Act had been enacted. R.J.'s death was thus no longer an obstacle for bringing a paternity claim against him. However, the claim had been brought after the expiry of the five-year time-limit. The reason why the claim had been brought late was that the applicant and her mother had been mistaken about the legal character of the child support decision but this mistake was not of a kind that would have justified a derogation from the five-year time-limit. The time-limit itself was not unreasonable or discriminatory nor was it incompatible with the Constitution, the Convention or the United Nations' Convention on the Rights of the Child. The court thus concluded that the applicant's claim was time-barred.
13. On 6 February 2002 the Kouvola Appeal Court (hovioikeus, hovrätten) upheld the District Court's decision on the same grounds as the latter.
14. The referendary of the Appeal Court considered in her report (mietintö, betänkande) that, since it had been established with DNA tests that R.J. was actually the biological father and since the applicant had a half-sister born in 1976 who had been acknowledged by R.J. in 1981, it would not be against the spirit of the Act to allow the establishment of paternity with regard to the applicant. Furthermore, she considered that applying the five-year rule in the specific circumstances would put the daughters in unequal positions with regard to inheritance and family relations. She referred to Article 8 of the Convention as well as to Article 7 of the United Nations' Convention on the Rights of the Child.
15. The applicant appealed to the Supreme Court (korkein oikeus, högsta domstolen). On 11 July 2002 the Supreme Court granted leave to appeal.
16. On 17 November 2003 the Supreme Court dismissed the applicant's claim in its precedent judgment KKO 2003:107 on the following grounds:
“The Paternity Act, on which [the applicant's] claim is based, entered into force on 1 October 1976. According to section 4 of its Implementing Act, the provisions of the Paternity Act are also applied when the child is born before the entry into force of the Act, unless otherwise provided in the Implementing Act. When the child was born before the entry into force of the Paternity Act, proceedings for the establishment of paternity must be initiated, in accordance with section 7, subsection 2, of the Implementing Act, within the time-limit of five years from the entry into force of the Paternity Act. According to the same provision, proceedings can no longer be initiated if the man is deceased.
[The applicant] requested in her action directed against the heir [S.T.] of [R.J.], who had died in 1999, that it be confirmed that [R.J.] was her father. [The applicant] was born out of wedlock on 2 September 1968 and thus before the entry into force of the Paternity Act. According to section 7, subsection 2, of the Implementing Act, proceedings for the establishment of the paternity of [R.J.] should have been brought within the five-year time-limit from the entry into force of the Paternity Act, that is, at the latest on 1 October 1981. [The applicant] initiated the proceedings only on 29 September 2000. Therefore the lower courts rejected her action as time-barred.
The above-mentioned five-year time-limit applies only to those children who were born before the entry into force of the Paternity Act. Those children who were born after the entry into force of the Paternity Act can initiate proceedings for the establishment of paternity without any time-limits or any restriction related to the death of the man.
The question is first of all whether the time-limit in question, which prohibits [the applicant] having paternity established, puts her, contrary to Article 6, paragraph 2, of the Constitution, in a different position without acceptable justification, due to her date of birth and thus her age, to those children who were born out of wedlock after the entry into force of the Paternity Act. Only in the case that the answer to this question is in the affirmative, can the question of whether [R.J.'s] death prevents the establishment of his paternity arise.
It can be stated that the purpose of the time-limit in section 7, subsection 2, of the Implementing Act is that the child or its guardian decides to initiate the paternity proceedings within a reasonable time after the entry into force of the Act. Taking into account the interests of different parties, the legislator has considered five years as a reasonable and sufficient time-limit. This time-limit can be motivated by legal certainty considerations.
Before the entry into force of the Paternity Act, paternity of a child born out of wedlock could normally be established only if the man acknowledged his paternity. The paternity could be established by a court decision against the man's will only on very limited occasions and mainly when the child was considered as an engagement child in accordance with section 6, subsection 1, of the Implementing Act of the Marriage Act and Chapter 2, section 4, subsection 1, of the Code of Inheritance, as in force at the relevant time. On other occasions the man, who by having intercourse with the mother could have made her pregnant, could only be held liable to pay to the child alimony in accordance with the Act on Children Born out of Wedlock (173/1922). A child who had not been acknowledged or who was not an engagement child had no right to inherit from its father or the father's relatives.
The aim of the Paternity Act and of the concurrent legislative reform of the rights of a child was to guarantee the legal equality of children regardless of their descent. Therefore the provisions of the Paternity Act were made applicable also to children born before the entry into force of the Act. According to section 4 of the Implementing Act, children born out of wedlock had the same legal standing regardless of whether they were born before or after the entry into force of the Paternity Act. The fact that an alimony issue had been decided by a court before the entry into force of the Act did not prevent bringing proceedings for the establishment of paternity. Children also received the same right, irrespective of their descent, to inherit from their fathers and the fathers' relatives.
The Paternity Act thus meant that the legal status of children born out of wedlock was fundamentally changed and that they received an equal status with children born within wedlock. The entry into force of the Act did not, however, automatically ex lege change the children's legal status. If a man did not acknowledge a child, paternity proceedings had to be initiated in respect of a child born out of wedlock and the action could only be granted if there was sufficient evidence of the biological paternity. In this respect the provisions are the same as concerning children born after the entry into force of the Act.
The fact that the Paternity Act was made applicable also to children born before the entry into force of the Act created uncertainties as to whether new claims, which had not even been possible under the previous legislation and for which there had thus been no need to be prepared, were going to be presented on the basis of events that had maybe taken place long before the entry into force of the Act. It was important for a man to know, inter alia, who his heirs were in order to dispose by will of their shares. This also had consequences for the man's relatives as the establishment of paternity had an effect on their rights because of the child's right to inherit.
The number of persons who could be concerned by the change of legal status provided for in the Paternity Act was considerable. Proceedings for the establishment of paternity could be initiated within the above-mentioned five-year time-limit irrespective of the age of the person born out of wedlock. The establishment of paternity could change legal relationships created maybe decades earlier. The change of the man's legal status due to the establishment of paternity can lead to an annulment of previous decisions also in cases when the children are born after the entry into force of the Paternity Act. The retroactive application of the provisions concerning establishment of paternity in respect of children born before the entry into force of the Act and the effects that it has on legal relationships created under the earlier provisions may create even bigger and more significant problems. The probability of such problems is greater the more time has elapsed since the entry into force of the Act. There are thus strong reasons for having the time-limit in section 7, subsection 2, of the Implementing Act.
The provision containing the time-limit has not been conducive to creating confusing interpretations but, on the contrary, it is unambiguous and strict. In its precedent judgment KKO 1993:58 the court has examined an action for the establishment of paternity although it had been brought later than within the five-year time-limit from the entry into force of the Paternity Act and the man was deceased. However, the case concerned a child who had had the status of a child born within wedlock when the Act entered into force and who could only initiate proceedings for the establishment of the paternity of another man after the paternity of the mother's husband had been annulled. [In the applicant's] case there were no legal obstacles for initiating the proceedings.
The Paternity Act has now been in force for more than 25 years. All children born before its entry into force have been adults for some time. It is probable that the paternity of almost all children born then out of wedlock has already been established in one way or another with a final court decision or otherwise in accordance with the time-limit provided in section 7, subsection 2 of the Implementing Act. The legal status of these children has also been determined accordingly. The legal situation can be regarded as established. For these reasons, and especially having regard to the time elapsed since the entry into force of the Paternity Act, this time-limit has today an even more significant role in providing legal certainty.
It has not been claimed that [the applicant] and the putative father [R.J.] had ever lived together nor has there ever been any family relationship between them or any other close relationship. [The applicant] was already 32 years old when she initiated the proceedings. Taking into account [R.J.'s] death and the circumstances as a whole, the establishment of his paternity would have significance only in relation to the applicant's right to inherit. The international conventions by which Finland is bound, such as the Convention on the Rights of the Child (SopS 60/1991) and the European Convention on Human Rights (SopS 19/1990), and their case law, do not support such interpretation that the literal application of section 7, subsection 2, of the Implementing Act would be incompatible with these Conventions in the present case.
On the above-mentioned grounds the Supreme Court considers that section 7, subsection 2, of the Implementing Act does not put [the applicant], who was born before the entry into force of the Paternity Act, in a different position without acceptable justification, due to her date of birth and thus her age, to those children who were born out of wedlock after the entry into force of the Act. The application of the five-year time-limit in that provision is thus not incompatible with the prohibition of discrimination provided in Article 6, paragraph 2, of the Constitution.
17. The referendary of the Supreme Court stated in her report that refusing to establish the applicant's paternity would be unconstitutional and would involve discrimination. The referendary proposed that the Supreme Court disregard the time-limit on the basis of Article 106 of the Constitution.
18. The Constitution of Finland (perustuslaki, grundlagen, Act no. 731/1999), Article 6, paragraphs 1 and 2, guarantees to everyone equality before the law and forbids discrimination of any kind:
“Everyone is equal before the law.
No one shall, without an acceptable reason, be treated differently from other persons on grounds of sex, age, origin, language, religion, conviction, opinion, health, disability or other reason that concerns his or her person. ...”
19. Article 21, paragraph 1, of the Constitution guarantees to everyone the right to have one's case dealt with by a court of law:
“Everyone has the right to have his or her case dealt with appropriately and without undue delay by a legally competent court of law or other authority ...”
20. Article 106 of the Constitution gives a court of law the right to give primacy to the Constitution when the application of an Act would conflict with the Constitution:
“If, in a matter being tried by a court of law, the application of an Act would be in evident conflict with the Constitution, the court shall give primacy to the provision in the Constitution.”
21. According to Chapter 12, section 1, subsection 2, of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken; Act no. 444/1999):
“A minor who has attained fifteen years of age shall have an independent right of action and right to be heard in a matter concerning his or her person, parallel to that of the person responsible for his or her care and custody or his or her other legal representative.”
22. According to section 20 of the Act on Children Born out of Wedlock (laki avioliiton ulkopuolella syntyneistä lapsista, lagen om barn utom äktenskap, Act no. 173/1922), a child born out of wedlock had a father, if a man acknowledged paternity, but paternity could not be established against a man's will. According to section 24 of the same Act, such defendant was deemed to be the person liable to provide child support to the child if he had had sexual intercourse with the child's mother at the time when the child was possibly conceived. However, such an action was to be dismissed if it was manifestly improbable that the child was conceived as a result of that sexual intercourse.
23. As the children born out of wedlock were put in a substantially worse position than the children born in wedlock, there was a need to guarantee equal treatment of all children before the law (see government proposal HE 90/1974). This became the main aim of the new Paternity Act of 1975 (isyyslaki, lagen om faderskap, Act no. 700/1975) which repealed the Act of 1922.
24. Section 3 of the Paternity Act provides that paternity is established either by acknowledgement or by a court decision. According to section 22, subsection 1, the child has a right to institute proceedings with a view to having paternity established.
25. Section 4 of the Implementing Act of the Paternity Act (laki isyyslain toimeenpanosta, lagen angående införande av lagen om faderskap, Act no. 701/1975) provides that the provisions of the Paternity Act shall also apply if the child was born before the entry into force of the Act, unless otherwise provided below. Section 5 provides that if a man, pursuant to the Act on Children Born out of Wedlock, enacted before the entry into force of the Paternity Act, has committed or been obliged by a final judgment to pay child support to a child born out of wedlock who has not the status of an acknowledged child, the provisions in sections 6 and 7 of this Act shall apply to the investigation of paternity, actions for the establishment of paternity and the exercise of the child's right to be heard.
26. Sections 6 and 7 of the Implementing Act of the Paternity Act provide as follows:
“The child welfare supervisor shall attend to the investigation of paternity as provided in the Paternity Act, if a child born before the entry into force of this Act has not reached fifteen years of age and the mother or the legal guardian of the child has expressed a wish that the child welfare supervisor attend to the investigation of paternity. After a man has acknowledged his paternity, the provisions in section 5, subsection 2; section 20, subsection 1; and section 21 of the Paternity Act shall apply to the obligation of the child welfare supervisor to attend to the investigation of paternity, and to the enforcement of acknowledgement.”
“A child or his or her legal guardian shall have the right of action for the establishment of paternity as provided in the Paternity Act. The child welfare supervisor shall not be entitled to exercise the child's right to be heard without a separate authorisation. Proceedings for the establishment of paternity must be initiated within five years from the entry into force of the Paternity Act. However, no proceedings may be instituted if the man is deceased.”
27. It appears from the drafting history of the Paternity Act (see Report of the Legal Affairs Committee LaVM 5/1975 vp, p. 10) that considerations of legal certainty underlay the decision to restrict the right of action. The entry into force of the Act opened up an opportunity to initiate proceedings that did not exist at the time when the children in question were conceived. The legislator considered that putative fathers' legal security required rapid elimination of uncertainty about possible claims being brought against them on the basis of the Paternity Act. The restriction that a man's death prevented the initiation of proceedings was justified by the argument that in such cases it was usually no longer possible to obtain sufficient evidence of the man's paternity.
28. The Supreme Court has held on several occasions that the five-year time-limit in question is to be strictly applied. An exception has been made in a case where the paternity of the mother's husband had to be annulled first and, as a result of that, the child would have become fatherless if the time-limit had been strictly respected (see KKO 1993:58).
29. In its precedent case KKO 1982-II-165 the Supreme Court considered that the five-year time-limit in section 7, subsection 2, of the Implementing Act of the Paternity Act was not such a time-limit that could be restored by seeking extraordinary remedies (menetetyn määräajan palauttaminen, återställandet av försutten fatalietid).
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