ITEMID: 001-23316
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: MARINTCHEV v. BULGARIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Mr Miroslav Georgiev Marintchev, is a Bulgarian national who was born in 1954 and lives in Plovdiv. He was represented before the Court by Mr M. Ekimdjiev, a lawyer practising in Plovdiv. The respondent Government were represented by Ms M. Dimova, co-agent, of the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 31 January 1990 the applicant’s former wife took proceedings against him in the Plovdiv Distinct Court, seeking the annulment of a donation of an amount of money made during their marriage. She claimed the return of 1,000 convertible levs („валутни лева“), a special currency unit used in Bulgaria at the time.
The first hearing was held on 1 March 1990. The applicant disputed the claim and counter-claimed for five items of jewellery, allegedly costing 17,000 Bulgarian levs (“BGL”), which he had donated to his former wife. The court ordered an expert report on the value of the jewellery and requested from the applicant’s and his former wife’s bank all documents relating to the banking transactions effected during their marriage.
The second hearing took place on 3 April 1990. The court heard two witnesses whose testimony related to the jewellery claimed by the applicant. Noting that the banking documents requested at the previous hearing had not been produced, the court reiterated its request to the bank.
The third hearing was held on 25 April 1990. The court admitted in evidence the expert report on the value of the jewellery. It noted that the banking information had not yet been produced and adjourned the case until 5 June 1990.
On 1 June 1990 the applicant’s lawyer asked the court to reschedule the hearing listed for 5 June 1990 because he intended to be on leave between 3 and 9 June 1990. The court granted the request and listed a hearing for 13 November 1990.
At the hearing held on 13 November 1990 the applicant’s former wife increased her claim to 4,657 convertible levs and returned part of the jewellery claimed by the applicant. The court ordered an additional expert report on the value of the jewellery.
The next hearing took place on 5 December 1990. The court heard two witnesses and admitted in evidence the expert report on the value of the jewellery. The applicant’s former wife’s lawyer disputed the expert’s conclusion and the court ordered a new expert report to be drawn up by three experts.
The last hearing before the Plovdiv District Court was held on 25 March 1991. The court admitted in evidence the report of the three experts ordered at the previous hearing. The applicant’s former wife presented certain documents as evidence. The court also heard the parties’ arguments.
By judgment of 25 February 1992 the Plovdiv District Court annulled the donation made by the applicant’s former wife and ordered the applicant to pay the amount back. The court also disposed of the applicant’s counter-claim, ordering his former wife to return certain items of jewellery.
On 2 April 1992 the applicant appealed against the judgment to the Plovdiv Regional Court. Having noted that he had not paid the requisite fee for filing an appeal, on 10 April 1992 the court instructed him to rectify this omission. The applicant paid the fee and on 7 May 1992 the court listed a hearing for 30 June 1992.
The hearing before the Plovdiv Regional Court was held on 30 June 1992. The court refused the applicant’s former wife’s request to adjourn the hearing, admitted in evidence certain documents filed by the applicant and heard argument.
By judgment of 6 July 1992 the Plovdiv Regional Court partially vacated the first-instance judgment, holding that in view of the amount claimed by the applicant’s former wife (4,657 convertible levs, equal to BGL 65,896.55 at the relevant time), the district court had lacked jurisdiction over the matter, the competent court for claims above BGL 10,000 being the regional court. It upheld the judgment as regards the applicant’s counter-claim in respect of the jewellery.
The proceedings then resumed at first instance before the Plovdiv Regional Court, but only in respect of the initial claim of the applicant’s former wife.
The first hearing before the Plovdiv Regional Court was held on 20 October 1992. The applicant’s former wife was represented by a new lawyer. The court ordered an accounting expert report to be prepared on the banking transactions of the applicant and his former wife.
The second hearing took place on 3 December 1992. The court admitted in evidence the accounting expert report. Finding that the report was not complete as the bank had not allowed the expert access to all relevant documents, the court ordered the expert to supplement the conclusions and ordered the bank to allow access to all documents. The court also heard two witnesses.
The last hearing took place on 12 February 1993. The applicant’s lawyer asked the court to adjourn the case, as the Bar Association of which he was a member had ordered a strike and he could therefore not appear before the court on that date. The court rejected the request, admitted the supplementary expert report in evidence and heard argument.
On 19 February 1993 the Plovdiv Regional Court decided in favour of the applicant’s former wife.
On 23 March 1993 the applicant appealed. Noting that the requisite court fee had not been paid, the court instructed the applicant to pay it. The applicant did so on 13 April 1993, and the case was forwarded to the Supreme Court.
A hearing due to take place before the Supreme Court on 8 December 1993 was adjourned because the summons for the applicant’s former wife had been served on her previous lawyer and not on her current lawyer.
The hearing was held on 6 April 1994. The applicant presented one document as evidence and his written observations.
By judgment of 25 April 1994 the Supreme Court quashed the Plovdiv Regional Court’s judgment and remitted the case. It held that the lower court had erred by proceeding at its last hearing in the absence of the applicant’s lawyer. It also held that the lower court’s conclusion on the origin of part of the money claimed by the applicant’s former wife had not been supported by the evidence and instructed that court to gather evidence in that respect. It also instructed the lower court to gather evidence about the applicant’s former wife’s animus donandi.
The first hearing in the proceedings on remittal before the Plovdiv Regional Court was held on 19 September 1994. On the motion of the applicant’s lawyer the court ordered an accounting expert report. It also invited the parties to present additional evidence.
The next hearing, which was due to take place on 25 October 1994, was adjourned because the expert report was not ready. Since a witness for the applicant’s former wife was going to be out of the country for more than two months, the court decided to schedule the next hearing for a date not earlier than March 1995.
The hearing listed for 6 March 1995 did not take place because the applicant’s former wife, who was out of the country at that time, had not been correctly summoned.
A hearing was held on 12 April 1995. The court admitted in evidence the expert report ordered on 19 September 1994, and heard two witnesses called by the applicant and one witness for the applicant’s former wife.
By judgment of 4 July 1995 the Plovdiv Regional Court found in favour of the applicant’s former wife. It held that the amount in issue was the personal property of the applicant’s former wife, that she had donated it to him during the marriage and that the applicant was obliged to return it.
On 29 September 1995 the applicant filed an appeal. Finding that the applicant had specified the amount in convertible levs and not in Bulgarian levs, as required under the relevant rules of civil procedure, on 4 October 1995 the court instructed him to rectify this shortcoming. The applicant did so on 3 November 1995. Based on the amount specified by the applicant, the court calculated the requisite fee for filing an appeal, and on 6 November 1995 invited the applicant to pay it. The applicant paid and on 16 January 1996 the case file was forwarded to the Supreme Court of Cassation.
The first hearing before the Supreme Court of Cassation was due to take place on 5 September 1996, but was adjourned because the applicant’s lawyer refused to accept the summons as he was no longer in contact with the applicant.
The hearing took place on 10 December 1996. The applicant was represented by a new lawyer. The court heard argument.
On 2 July 1997 the Supreme Court of Cassation, acting as a court of appeal, reversed the lower court’s judgment as regards the additional amount claimed by the applicant’s former wife and decided that her action was well-founded only in respect of the amount initially claimed.
On 1 September 1997 the applicant’s former wife’s lawyer lodged a petition for review with a five-member panel of the Supreme Court of Cassation.
At a hearing held on 11 March 1998 the court found that the petition for review, which had been lodged by a lawyer, was not accompanied by a power of attorney. It instructed the applicant’s former wife’s lawyer to rectify this omission. On 5 May 1998 the court, noting that the omission had not been rectified after notification, discontinued the proceedings. As of that date its judgment of 2 July 1997 became final.


ITEMID: 001-88813
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF FORMINSTER ENTERPRISES LIMITED v. THE CZECH REPUBLIC
IMPORTANCE: 3
CONCLUSION: Violation of P1-1;Just satisfaction reserved
JUDGES: Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Volodymyr Butkevych;Zdravka Kalaydjieva
TEXT: 6. The facts of the case, as submitted by the parties, may be summarised as follows.
7. On 29 January 1997 the applicant company entered into a purchase agreement with Královéhradecká brokerská a.s., a joint stock company incorporated under Czech law (“KHB”). Under the agreement it bought 384,971 book-entry shares representing 55.71% of the registered capital of KOTVA a.s., a joint stock company incorporated under Czech law. The shares were registered with Prague Securities Centre (Středisko cenných papírů), which acted as a central securities depository.
8. In March 1997 criminal proceedings were instituted against H., a member of KHB’s board of directors, for illegal disposal of shares and other securities to the detriment of two Czech investments funds, TREND a.s. and MERCIA a.s., which joined the criminal proceedings as civil parties seeking damages.
9. On 11 March 1997 the Hradec Králové Deputy Regional Prosecutor (náměstek krajského státního zástupce), within the framework of the criminal proceedings, ordered the Securities Centre to register the suspension of the applicant company’s right to dispose of all shares deposited in its account (příkaz k registraci pozastavení výkonu práv majitele veškerých cenných papírů) until the end of the criminal proceedings. The order was based on a suspicion that the shares had been acquired illegally and that it was necessary to freeze them in order to secure claims from the victims of the transaction. The prosecutor relied on section 27(3)(d) of the Securities Act (no. 591/1992), which entitled State authorities to order such suspension where empowered to do so by a specific law, and on Article 78 § 1 of the Code of Criminal Procedure (“the CCP”), which gave the prosecuting authorities the right to seize items of importance for criminal proceedings.
10. In a letter of 25 April 1997 addressed to the Ministry of Finance, the Regional Prosecutor stated as follows:
“In order to clarify the criminal activities of [H. and others] and establish facts important for the criminal proceedings, and in an effort to prevent illegal transfers of securities, I decided to apply section 27(3)(d) of the Securities Act (no. 591/1992) ... However, this procedural step which, I discovered, was based on Articles 78 and 79 of the CCP, is very problematic and untenable in the case of bookentry shares. Under these circumstances, the Securities Centre will be ordered, by 16 May 1997 at the latest, to cancel the registration of the suspension of disposal rights over the book-entry shares held by the following companies: ... (f) Forminster Enterprises Limited.
Securities owned by persons who are not facing criminal charges, which are in the portfolio of the aforesaid companies and are not relevant to the criminal activities, can no longer be impounded under criminal law because the existing criminal procedural regulations provide only for the seizure of tangible items of importance for the criminal proceedings under Article 78 of the [CCP] which can be surrendered or, pursuant to Article 79, seized. [In addition,] the application of Article 79a of the [CCP] in respect of securities is excluded. To proceed under section 27(3)(d) of the Securities Act is possible only when a specific law so provides. [However,] the [CCP] does not provide for such a procedural step ...”
11. On 12 May 1997 the Deputy Regional Prosecutor informed the Securities Centre that his order of 11 March 1997 was cancelled. Relying on section 27(3)(d) of the Securities Act read in conjunction with Article 79 § 1 of the CCP, he again ordered the suspension of the applicant company’s right to dispose of its 384,971 KOTVA shares pending the criminal proceedings. He considered, inter alia:
“In the field of financial and commercial law, book-entry shares are not considered to be items, unlike in criminal law, where they are considered as rei sui generis, and are clearly regarded as ‘items’, as the use of the term ‘item’ in Article 89 § 16 of the Criminal Code shows. With regard to the specific characteristics of such items and the manner in which they are dealt with on the capital markets, it is necessary to apply ... Article 79 § 1 of the [CCP] by analogy and impound the securities in question ... under section 27(3)(d) of Act no. 591/1992.”
12. On 15 May 1997 the Securities Centre implemented the order.
13. On 27 June 1997 the applicant company challenged this measure before the Prague Senior Prosecutor (vrchní státní zástupce) who, on 8 August 1997, held that the Deputy Regional Prosecutor had proceeded in accordance with the law.
14. On 30 January 1998 the applicant company lodged a constitutional appeal (ústavní stížnost) alleging, inter alia, that its property rights guaranteed by Article 11 of the Charter of Fundamental Rights and Freedoms (Listina základních práv a svobod) had been violated by the Deputy Regional Prosecutor’s decision of 12 May 1997.
15. On 20 May 1998 the applicant company lodged an application with the Regional Prosecutor’s Office seeking the restoration of its KOTVA shares under Article 80 of the CCP. On 2 October 1998 it was told by the prosecutor’s office that on 30 September 1998 H. and others had been officially indicted before the Hradec Králové Regional Court (krajský soud) which was, therefore, competent to deal with the company’s application. The indictment contained more than 7,000 pages.
16. On 11 November 1998 the Constitutional Court (Ústavní soud) rejected the applicant company’s constitutional appeal, contesting the seizure, as having been introduced outside the sixty-day statutory time-limit provided for by the Constitutional Court Act. According to the court, the time-limit had already been triggered by the adoption of the Deputy Regional Prosecutor’s decision to seize the shares, as the company’s complaints to the Senior Public Prosecutor’s Office and the Prosecutor General’s Office had not constituted effective remedies within the meaning of the Constitutional Court Act.
17. On 10 March 1999 the Regional Court remitted the criminal case against H. and others to the Regional Prosecutor’s Office for further consideration.
18. On 28 April 1999 the applicant company renewed its application for restoration of its rights to the KOTVA shares under Article 80 of the CCP, this time before the Regional Court; the latter was, however, no longer competent to consider it, as the criminal case had been returned to the Regional Prosecutor.
19. On 17 April 2000 the applicant company urged the Regional Prosecutor to decide on its application of 20 May 1998 for restoration of its rights to the KOTVA shares. On 21 April 2000 it was informed that the case was currently under the supervision of the Olomouc Senior Public Prosecutor’s Office and it was therefore open to the applicant company to challenge the impoundment before that authority.
20. On 7 February 2003 the applicant company requested the Senior Public Prosecutor’s Office to annul the impoundment of the KOTVA shares under Article 79c of the CCP. On 17 February 2003 the prosecutor refused the request, finding it unsubstantiated.
21. On 10 March 2003 the Prague High Court (vrchní soud) rejected the applicant’s complaint of 24 February 2003 in which it was argued that the impounding had been ordered sine lege and was no longer necessary in the light of the objectives of the criminal proceedings. The court ruled that the impounding had been justified by the reasonable suspicion that the shares had represented the profit obtained by Mr H. from his illegal transactions. According to the court, that suspicion had not yet been dispelled.
22. On 5 May 2003 the applicant company challenged this decision before the Constitutional Court. Referring to Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, it contended that the seizure of its shares had been ordered sine lege, that its property rights were restricted for more than seven years and that the seizure had been unlawful and was no longer necessary to achieve the aims of the criminal proceedings.
23. On 15 April 2004 the Constitutional Court declared the appeal inadmissible as manifestly ill-founded, stating, inter alia:
“... the Regional Prosecutor proceeded in accordance with the national law then in force. While at the relevant time the criminal law included neither Article 79c of the [CCP], which expressly provides for the impoundment of book-entry shares (this provision was introduced by Act no. 265/2001 which entered into force on 1 January 2002), nor Article 89 § 13 of the Criminal Code which subsumes securities under the notion of ‘item’ ... [introduced by Act no. 253/1997 which entered into force on 1 January 1998], there is no doubt that the criminal law ..., in respect of serious economic crime cases, considered book-entry shares as items within the meaning of the criminal law even before 1 January 1998. The Regional Prosecutor’s order of 12 May 1997 ... was issued under section 27(3)(d) of Act no. 591/1992 as amended and under Article 79 of the [CCP]. At the relevant time, the criminal law did not require any particular form for such an order. No appeal against it was therefore available ... However, any order suspending the right to dispose of securities was subject to supervision by the competent prosecutors’ offices. ”
24. H. and ten others accused of various economic crimes were reindicted on 8 August 2003. In January 2004 their case was subsequently remitted once again by the Regional Court to the Regional Prosecutor’s Office for further consideration.
25. On 15 July 2005 the indictment was filed by the Regional Prosecutor for the third time.
26. On 15 June 2006 the Regional Court decided under Article 79c § 3 of the CCP to extend the seizure until the end of the criminal proceedings, as the reasonable suspicion that the shares had constituted the profit obtained by H. as a result of his illegal transaction had not yet been dispelled. It further decided to suspend the voting rights connected with the seized shares.
27. On 24 July 2006 the High Court, on a complaint by the applicant company, upheld this decision.
28. In July 2006 the joint stock companies K-T-V Invest a.s. and Česká investiční a správcovská a.s. merged. Following that merger, 384,971 seized KOTVA book-entry shares with a nominal value of 1,000 Czech korunas (CZK) (35.19 euros (EUR)), held by the applicant company, were converted into the same number of share certificates issued by the company Česká investiční a správcovská a.s., with a nominal value of CZK 920 (EUR 32.37).
29. On 5 February 2007 the share certificates for Česká investiční a správcovská a.s. were deposited with the Regional Court pursuant to section 113(9) of the Capital Markets Act (Law no. 256/2004) and on a request made under Article 78 § 1 of the CCP.
30. The applicant company’s constitutional appeal challenging these decisions is pending before the Constitutional Court.
The criminal proceedings are still pending and the applicant company’s securities remain seized. Seventeen hearings, each lasting several days, were held by the court, during which a large volume of evidence was taken. The case file contains more than 14,500 pages. The Regional Court heard or is still due to hear several dozens of witnesses, some of them abroad. Moreover, several experts were heard and expert reports commissioned. The damage caused according to the indictment amounts to CZK 1,191,922,741 (EUR 41,941,642)
31. MERCIA and TREND challenged the acquisition of the KOTVA shares by the applicant company, not only as civil parties seeking damages in the criminal proceedings but also through their respective civil actions disputing the transfer of the shares to the applicant company.
32. On 9 September 1998 the Prague Regional Commercial Court (krajský obchodní soud), before which MERCIA had contested the title to 251,497 KOTVA shares (out of a total of 384,971 KOTVA shares) in civil proceedings brought against the applicant company, approved a friendly settlement concluded between the applicant company and MERCIA.
33. On 21 December 1999 the applicant company and TREND concluded a friendly settlement of their civil dispute concerning the ownership of the 384,971 KOTVA shares. This settlement was contested by an action for nullity filed on an unspecified date by minority shareholders of TREND seeking the return of the KOTVA shares to TREND.
34. On 17 May 2000 the Czech Securities Commission (Komise pro cenné papíry), a State regulatory authority, approved the settlements. As a consequence, all civil proceedings concerning KOTVA shares brought by MERCIA and/or TREND against the applicant company were discontinued. Moreover, these joint stock companies waived their status as civil parties in the criminal proceedings. They informed the State authorities acting in the criminal case of their respective settlements and stated that, as the instigators of the impoundment of the shares, they no longer insisted on seizure.
35. Under Section 72(1)(a) an individual alleging an impairment of his or her rights guaranteed by constitutional law may lodge a constitutional appeal with the Constitutional Court.
36. Until 31 December 1997, Article 89 § 16 read as follows:
“Controllable natural resources, too, shall be regarded as items.”
37. Another sentence was inserted into that provision on 1 January 1998. It provided as follows:
“The provisions governing items shall also apply to securities.”
38. After Act no. 238/1999 entered into force on 1 January 2000, this provision became Article 89 § 13.
39. Article 78 governs the obligation to hand over items of importance for criminal proceedings. Under paragraph 1, persons possessing such items are required to submit them to a court, prosecutor or police authority at the latter’s request. If the item is being seized for the purposes of the criminal proceedings, the person concerned must surrender it to the prosecuting authorities at their request.
40. Pursuant to Article 79 § 1, if the person concerned does not surrender the item of importance for the criminal proceedings, it must be taken from him/her and seized on an order from the president of a chamber during the trial or by the prosecutor, investigator or police authority at the pre-trial stage of the proceedings. The investigator or police authority may do so only with the authorisation of a prosecutor.
41. Article 80 § 1 provides, inter alia, that items which are no longer needed for the criminal proceedings and whose confiscation or seizure can be ruled out should be returned to the person concerned. Under Article 80 § 3 a decision on this matter at the pre-trial stage of the criminal proceedings is adopted by a prosecutor. Such a decision may be challenged by means of a complaint.
42. According to Article 119 § 2 rulings of prosecutor, investigator and police have the form of decision.
43. Article 141 § 1 states that a complaint is a remedy against a decision.
44. Under Article 141 § 2 a first-instance decision adopted by a court or a prosecutor may be challenged by means of a complaint only where the law explicitly so provides.
45. Article 79a provides for the seizure of financial assets deposited in a bank account. Under paragraph 1, if the facts indicate that the financial assets in a bank account are destined for the commission of a crime, or have already been used for such purposes, or constitute the proceeds of criminal activities, the president of a chamber or a prosecutor, or the police authority at the pre-trial stage of the criminal proceedings, are empowered to impound them. Paragraph 5 provides that such seizure may be challenged by means of a complaint.
46. The newly introduced Article 79c governs the seizure of book-entry shares. Under paragraph 1, should the president of the chamber, or the prosecutor at the pre-trial stage of the criminal proceedings, decide on a seizure of book-entry shares, the Securities Centre, a legal person empowered to keep records and exercise other activities of the Securities Centre under a specific law, or the Czech National Bank must open a special bank account in which the seized securities are deposited. Paragraph 3 provides, inter alia, that the authorities mentioned in paragraph 1 may suspend the rights connected with seized shares. According to paragraph 4, Article 79a applies mutatis mutandis to the procedure governing decisions to seize book-entry shares and to reduce the terms of or lift such seizures.
47. Article 146a, which provided for a review by a court of seizures of property by a prosecutor, was substantially amended, bringing within its ambit, inter alia, decisions on seizures of book-entry shares under Article 79c, financial assets, real estate and other assets. However, seizures of items under Article 79 do not fall within its scope.
48. Section 12a (3) provides that a decision adopted by a prosecutor may be reviewed by a superior prosecutor unless the Act or another law provides otherwise.
49. Under section 1(2) a share certificate may be substituted by a bookentry share, that is, by entry in a record of shares as provided for by law.
50. Section 27 provided for suspension of the right to dispose of bookentry shares. Under paragraph 3d, a suspension order was to be issued by the competent State authority, under a specific law (for instance, section 313 of the Code of Civil Procedure). The provision was repealed by Act no. 257/2004, which entered into force on 1 May 2004.
51. Section 97 provides for suspension of the owner’s disposal rights over book-entry investment instruments. Under paragraph 1(b), an order registering the suspension of the owner’s disposal rights is granted by the competent court or administrative authority, if it is necessary in connection with the issuing of a preliminary measure, for the purposes of judicial or administrative proceedings, or if a specific law so provides.
52. The Prosecutor General directed that book-entry shares were to be considered as items within the meaning of criminal law and could therefore be seized on the basis of Articles 78 and 79 of the CCP. This was according to him possible even before the enactment of Act no. 253/1997, which entered into force on 1 January 1998.
53. The Criminal Code – A Commentary by Šámal, P., Púry, F. and Rizman, S., 3rd edition, 1998, C.H. Beck, p. 548, reads as follows:
“According to the majority opinion in [domestic] practice, ... [as of] ... 1 January 1998 ... it is also possible to seize book-entry securities as items ... on the basis of Articles 78 et seq. of the Code of Criminal Procedure governing the seizure of items. What continues to cause problems is the inadequate and inappropriate nature of Articles 78 and 79 of the [CCP] in respect of [such seizures], as the seizure of bookentry shares does not constitute the seizure or taking of an ‘item’ within the proper meaning of that term.”
54. The Criminal Code – A Commentary by Šámal, P., Púry, F. and Rizman, S., 4th edition, 1998, C.H. Beck, pp. 472 and 865, reads:
“An order to seize an item [under Article 79 § 1] is a decision sui generis ... No complaint can be lodged against it, as it is not a decision [within the meaning of Article 141 et seq.].”
“A prosecutor supervising the pre-trial stage of criminal proceedings is in principle empowered to decide on complaints challenging decisions adopted therein by [the prosecuting authorities]. The exception to this principle is a situation where the prosecutor assented to or initiated the decision and is thus not in a position to review the complaint impartially.”
55. The Code of Criminal Procedure – A Commentary by Růžička, M. and others, ASPI, 13 January 2003, in a chapter entitled “The seizure of book securities – Article 79c”, reads as follows:
„Until the end of 2001, [domestic] practice relied on the idea that even book-entry securities constituted items within the meaning of criminal law. The provisions of Article 89 § 13 of the Criminal Code (inserted by amendment no. 253/1997) extended the scope of application of the term ‘item’ to include, inter alia, all types of securities. Nevertheless, it had been possible to arrive at the same conclusion even before that amendment entered into force ... It was therefore possible to seize [book-entry shares] (Article 79 of the [CCP]) ...”


ITEMID: 001-70324
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: HEDSTROM AXELSSON v. SWEDEN
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Jonas Hedström Axelsson, is a Swedish national, who was born in 1976. He is presently serving a prison sentence in Sweden. He was represented before the Court by Mr S. Bergfeldt, a lawyer practising in Eskilstuna. The respondent Government were represented by Ms I. Kalmerborn, Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 26 August 1997 a prisoner was killed at Tidaholm prison where the applicant was serving a prison sentence. Suspicions quickly centred on three persons, the applicant and two other prisoners.
On 28 August 1997, while the applicant was being interviewed by the police, he was informed, in accordance with chapter 23, section 18 of the Code of Judicial Procedure (Rättegångsbalken), that he was suspected of murder. Having been informed also of his right to be assisted by defence counsel, the applicant stated that he wanted one of two named lawyers to be appointed for him; otherwise, he would not answer any questions. However, no counsel was appointed. Later the applicant contacted a lawyer with regard to the confiscation of certain objects from his cell and, at further police questioning on 5 November 1997, he stated that he wished to be represented by that lawyer. Still, he claimed that he would not make any statement before a possible court hearing in the case. No questions about the murder were put to the applicant during the two police interviews.
Assisted by the lawyer, the applicant sent written requests for counsel to be appointed, to the police on 3 November 1997 and to the public prosecutor in charge of the preliminary investigation, at the Public Prosecutor’s Office in Gothenburg, on 9 December 1997. The prosecutor did not report the matter to the court, however. Contacted by the lawyer by telephone in late January 1998, the prosecutor stated that the issue of appointing defence counsel did not arise, as the applicant refused to answer questions posed by the police. The prosecutor was reminded of the matter by a letter from the lawyer on 26 January 1998. A week later, no measures having been taken in this regard, the applicant, via the lawyer, made a request to the District Court (tingsrätten) of Falköping to have counsel appointed for him. In an opinion to the court, the prosecutor endorsed the request. On 10 February 1998 the court appointed the lawyer, who had assisted the applicant, as his defence counsel.
On 3 September 1998 the public prosecutor made a request to the District Court for the taking of evidence outside a main hearing (bevisupptagning utom huvudförhandling). The court immediately summoned defence counsel for the applicant and the two other suspects by telephone for a hearing the following day. No documents were submitted and the three suspects themselves were not summoned. At the hearing, the public prosecutor informed counsel for the defence that a witness, who allegedly had been present when the murder was committed, had expressed to the police two days earlier that he was willing to testify, but only before a court. Furthermore, fearing reprisals, he would only testify anonymously. The taking of evidence was urgent as the witness would be expelled from Sweden to a distant country three days later. Defence counsel for one of the other suspects was unable to attend the hearing and the court therefore, at the prosecutor’s request, appointed another lawyer to represent that suspect during the hearing although the counsel in question, contacted by his colleagues by telephone, disagreed with this measure.
Counsel for the defence objected to the procedure, complaining that they had not received the records of previous police interviews with the witness and had not been given adequate time to prepare for the hearing or confer with their clients. They were also opposed to the witness remaining anonymous. The public prosecutor stated that she did not have any records of previous police interviews at her disposal.
The District Court, sitting with its president, decided to allow the taking of evidence under chapter 23, section 15 of the Code of Judicial Procedure with the procedure requested by the prosecutor. The court referred to a parliamentary committee report (SOU 1998:40, p. 326) in which it had been noted that the use of anonymous testimony, in certain circumstances, was allowed according to the case-law of the European Court of Human Rights. The court had further regard to the special circumstances described by the prosecutor and considered that the fact that the suspects themselves had not been summoned to the hearing did not constitute an impediment for the hearing to go ahead. It also observed that the circumstances surrounding the hearing would have to be taken into account at a future evaluation of the evidence in question.
After having identified himself to the court in the absence of counsel for the defence, the witness was placed behind a screen, making him visible to the court and the prosecutor but not to counsel. During the questioning, counsel were able to cross-examine the witness.
Immediately after the taking of evidence the applicant was arrested and placed in custody. The public prosecutor applied for a detention order, referring to the evidence obtained from the anonymous witness.
On 8 September 1998 the District Court, sitting with a different judge, held a detention hearing in the presence of the applicant and his counsel. The prosecutor explained that there was other evidence against the suspects in the case which she could not present at that time as she needed more time to put together the material. Following the hearing, the District Court ordered the detention of the applicant. By other decisions taken on 8 and 10 September 1998, the court also ordered the detention of the other two suspects.
The applicant appealed and, on 15 September 1998, the Göta Court of Appeal (Göta hovrätt) quashed the District Court’s detention order. The appellate court noted:
“The examination by the District Court of an anonymous witness has not been permitted under Swedish law. The fact that [the European Court of Human Rights], in certain circumstances, has found such examinations to be in conformity with [the Convention] is therefore of no relevance to the question whether such examinations are allowed in Sweden.
The evidence presented by the public prosecutor is, in the Court of Appeal’s opinion, not such that [the applicant] can be considered as suspected of murder on probable cause. ...”
On 16 September 1998, at 12.20 p.m., that is less than twenty-four hours after the Court of Appeal’s decision, the public prosecutor again decided to have the applicant as well as the other suspects arrested. The applicant was arrested at 1.10 p.m. His counsel was not notified. It appears from the arrest order that the reason for his arrest was the risk that he would impede the inquiry of the murder (kollusionsfara). Following an interview with the police, which began at 1.39 p.m. and at which the applicant gave no statement, the applicant called the law offices of his counsel at 2.05 p.m. and informed another lawyer of the arrest. That lawyer immediately requested the Public Prosecutor’s Office in Gothenburg to review the arrest. On 17 September 1998, at 9.15 p.m., the assistant chief prosecutor, having considered the evidence as a whole, decided to quash the three arrest orders. She noted that she had contacted the public prosecutor who had then stated, as reasons for the arrests, that new information had surfaced.
The applicant was arrested anew on 3 December 1999 and was later detained by the District Court.
The applicant was given access to the report of the preliminary investigation on 15 March 2000.
On 27 March 2000 the applicant was indicted for murder. A copy of the report of the preliminary investigation, including a transcript of the testimony given by the anonymous witness, was submitted to the District Court. The public prosecutor sought to have an audiotape recording of that testimony played back at the court’s main hearing. She also requested that one person be heard about what had happened at the taking of evidence with that witness and that two policemen be heard about what had come out of police interviews with two inmates at Tidaholm prison.
Counsel for the three suspects in the case objected to the above evidence. They pointed out that anonymous testimony was not allowed under Swedish law; the fact that the name of the witness had been disclosed since the taking of evidence made no difference. As that evidence should be refused, the testimony of the person supposed to give evidence in that regard was irrelevant. Furthermore, the inmates in question should be heard in person at the main hearing or could have been heard in person previously outside the main hearing.
By a decision of 31 March 2000, the District Court disallowed the above evidence. It basically agreed with the arguments presented by counsel for the defence and referred to the Court of Appeal’s decision of 15 September 1998 on the anonymous testimony. It further stated that, although hearsay evidence was not as such prohibited under Swedish law or the Convention, it deprived the defendants of the possibility to cross-examine and noted that the public prosecutor had adduced no reasons as to why the two inmates had not been summoned to give evidence at the main hearing or at a taking of evidence outside the main hearing.
The District Court held an oral hearing in the case on 4 – 12 April 2000 and inspected the prison training facilities where the murder had taken place.
In a partial judgment of 28 April 2000 the District Court found one of the two other defendants guilty of murder and sentenced him to life imprisonment.
By another partial judgment of 29 May 2000 the District Court convicted the applicant of murder. He was sentenced to ten years in prison.
The main piece of evidence was an alleged eye-witness account of an inmate, W.J. According to a police memorandum included in the report of the preliminary investigation, W.J., who was to be expelled after having served his prison sentence on 16 October 1999, had expressed his willingness to testify on the condition that he would be allowed to remain in Sweden. However, it had been explained to him that only the Government could revoke an expulsion order. He had been questioned several times by the police in October and November 1999 following his release from prison, while he was awaiting expulsion. No further information was given on what had preceded the hearing of W.J. before the court.
In his testimony, W.J. claimed that he – and the person who had given evidence anonymously – had been present in the small weight-training room where the murder had been committed. He stated that he had seen the three suspects stabbing the victim with knives of the same type which he believed had been sharpened. Another inmate had told him that the defendants had proceeded to the sauna where they had placed three knives in a hole and had then gone to the shower.
W.J. further stated that, when interviewed by the police immediately after the stabbing, he had claimed, in order to protect himself, that he did not know anything about the event. However, he had later suffered from nightmares and a bad conscience and felt that it was not right to keep silent about what he had seen. When contacted by the police on 20 October 1999, he had agreed to testify.
During cross-examination, W.J. stated that the police had helped him to make a petition to the Government for the expulsion order to be revoked. Having been given a residence permit in 1989 on humanitarian grounds, he claimed that the petition had referred to political grounds and his diabetes and not to his giving testimony before the court. He had signed the petition himself but he did not know whether the police had attached any enclosures. The police had sent the petition in November 1999 and, by a Government decision of 25 November 1999, he had been granted a temporary residence permit until 24 May 2000. After he had been released from detention, where he had been awaiting his expulsion since having served his prison sentence on 16 October 1999, the police had found a flat for him with a secret address and had also helped him to buy a television set and had seen to it that he was generally comfortable. However, the police had not tried to influence his testimony.
In evaluating W.J.’s testimony, the District Court took into account that he had given his first statement about the event in November 1999, at which time the police had helped him to apply for a revocation of his expulsion order. The court noted that the application signed by W.J. stated, as reason for granting the request, that he had important information to give about the case. In an attachment dated 25 October 1999, the public prosecutor and the police stated that it was important that W.J. be allowed to remain in Sweden during the police investigation and the court proceedings. The court considered, in general, that, in view of the risks involved in talking to the police, a prisoner’s late submission of information did not necessarily diminish the credibility of the testimony. Noting furthermore that W.J. had been very anxious to stay in Sweden, the court considered that there were two possible ways to interpret his decision to testify: either he had perceived a chance to be granted a residence permit if he gave testimony and had, to this end, made up a story which corresponded with the police’s view of the case, or he had actually seen everything he now stated but had not dared to mention it until he was promised help with the above-mentioned application and concluded that the benefits of testifying outweighed the risks involved. Without giving any reasons for its conclusion, the court opted for the second interpretation.
The District Court then assessed the credibility of W.J.’s statements by comparing them with testimony given by other prisoners and the technical and other evidence in the case. The court could not infer from any of these pieces of evidence that the applicant had been involved in the murder, nor did any evidence exclude his involvement. It considered, however, that W.J.’s statements were supported by the technical evidence and were supported, or not contradicted, by the other evidence. It therefore considered that the murder had been committed as described by the public prosecutor.
In sentencing the applicant, the District Court took into account that, on 1 December 1995, he had been sentenced to three years’ imprisonment for an attempted murder in December 1994 and that, on 7 November 1996, he had been sentenced to eight years in prison for, inter alia, a murder committed in July 1996. The court noted that, as the applicant had been below the age of 21 when the murder of the prisoner had been committed, he could not be sentenced to life imprisonment.
The applicant appealed against the judgment. The public prosecutor requested that she be allowed to use the evidence that had been disallowed by the District Court.
By a decision of 16 June 2000 the Court of Appeal dismissed the evidence relating to the anonymous testimony but allowed two policemen to be heard about the statements given at the police interviews of two inmates at Tidaholm prison. At the subsequent hearing, only one of the two policemen gave evidence. The prosecutor withdrew the other policeman’s testimony.
Joining the applicant’s appeal and the appeal of the co-defendant who had been convicted by the District Court’s partial judgment of 28 April 2000, the appellate court held an oral hearing and also inspected the prison training facilities. At the hearing, W.J. stated, inter alia, that the police had not only found a flat for him but also a job. Furthermore, the police had given him financial aid, 1000 Swedish kronor in cash on four or five occasions. They had also helped him to apply for a prolongation of his residence permit, which had been granted until November 2000. He pointed out, however, that he had given the police a detailed statement of the course of events before the Government’s decision to grant him a residence permit in November 1999.
During the proceedings in the Court of Appeal in July 2000, the public prosecutor submitted a document in which the police stated that the risk assessment they had made had led to the provision of witness protection to W.J. The details of this protection were secret. It was stated, however, that the measures taken, including the financial aid, had been purely of a humanitarian nature and directly linked to the witness protection programme and that no money had been given to W.J. to bribe him to give evidence.
On 18 July 2000 the Court of Appeal upheld the District Court’s judgments. It noted that the testimony given by W.J. constituted the central evidence in the case and that it was of decisive importance whether his statements could be considered reliable enough to convict the co-defendants. According to the appellate court, the other evidence relied on by the public prosecutor had by and large no independent significance but in effect only served the purpose of showing that W.J.’s description of the course of events could be correct. In evaluating W.J.’s statements, the court considered that, although the circumstances surrounding the delivery of those statements had to be given careful consideration, his connection with the police was of no relevance to the assessment of the reliability of his statements. Instead, in assessing their credibility and reliability, it had to be determined whether they gave the impression that the events had been experienced by W.J. himself and what weight should be given to the supporting evidence. In these respects, the court found that W.J. had given a calm and confident impression, that he had given essentially identical information on all the occasions he had been heard and that there was no indication that W.J. had any reason falsely to blame the suspects. It also considered that another prisoner, heard on appeal but not at first instance, had given information which supported W.J.’s account. The latter was further supported by the location of the blood stains found in the prison training facilities. Moreover, the shape of the handles of the knives found in the sauna and the traces of blood discovered on the knives pointed towards the applicant’s involvement in the crime. In conclusion, the appellate court found that W.J.’s statements in all essential details were supported by the other evidence in the case and that they were in no essential details contradicted by any piece of evidence. The court considered that the supporting evidence was of considerable weight. However, no part of the appellate court’s reasoning was based on the evidence given by the policeman whose testimony had been allowed by the decision of 16 June 2000.
On 5 September 2000 the Supreme Court (Högsta domstolen) refused leave to appeal against the appellate court’s judgment.
The third suspect of the murder in question was apprehended and convicted in 2001. In this case, the Court of Appeal allowed the public prosecutor to invoke as evidence the reading of a transcript of the statement given by the anonymous witness in September 1998.
By a decision of 28 September 2001 the Parliamentary Ombudsman (Justitieombudsmannen), upon the applicant’s complaints, criticised the preliminary investigation in the applicant’s case in several respects. He made the following concluding remarks:
“In [the present case], which concerns a preliminary investigation of a murder, several issues of great importance for the protection of the suspect’s legal rights [rättssäkerhet] during a preliminary investigation have arisen. These issues concern, inter alia, the suspect’s right to defence counsel, the procedure for hearing witnesses before a court during the preliminary investigation, the public prosecutor’s presentation of the investigation material at the detention hearing and the possibility for the prosecutor to arrest a suspect anew following a court’s quashing of a detention order concerning that suspect.
The inquiry shows that the public prosecutor in charge of the preliminary investigation failed to forward to the court the suspect’s wish that defence counsel be appointed for him. A person who is suspected of a crime in respect of which is stipulated a sentence of no less than six months’ imprisonment has, under the Code of Judicial Procedure, an unconditional right to have appointed defence counsel upon request. If defence counsel is to be appointed for the suspect, the person in charge of the preliminary investigation is under a duty to notify the court thereof. The right to defence counsel is of fundamental importance for the protection of the suspect’s legal rights and, accordingly, there are reasons to severely criticise the responsible public prosecutor on account of her failure in this respect.
An issue of great principal interest in the case concerns the possibility to hear before a court a witness whose identity is not known to one of the parties. At the public prosecutor’s request, during the preliminary investigation a hearing for the taking of evidence was held before a court at which a witness relied on by the prosecutor was examined without his identity and appearance being disclosed to the defence counsel present. It appears, furthermore, that the suspects had not been summoned to the hearing.
As has been set out in greater detail in the present decision, the use of anonymous testimony before a court is not allowed under Swedish law, whether or not the witness is heard at or outside the main hearing in the case. The idea of allowing anonymous testimony in criminal cases has been rejected on several occasions by State authorities as well as by various committees, referring to the protection of the legal rights of the defendant. The fact that the European Court of Human Rights has stated that the use of anonymous testimony is not in all situations contradictory to the Convention is therefore of no relevance in this connection. Moreover, it is not possible under the law to refrain from summoning a suspect to a taking of evidence of the kind at issue. Accordingly, there are reasons to criticise the public prosecutor as well as the judge on account of the procedure applied in regard to the taking of evidence.
Furthermore, the facts of the case have occasioned me to stress the importance of the public prosecutor familiarising him- or herself with the investigation material before a detention hearing in a way which enables him or her to present all the circumstances that may be of importance for the court’s decision on the detention issue.
Finally, it may be questioned whether, following the Court of Appeal’s decision to quash the detention order, there were really such new circumstances which could justify the public prosecutor’s action of immediately taking a new decision to arrest.
Thus, to sum up, it has been established that the handling of the preliminary investigation has been deficient in several respects of central importance to the protection of the individual’s legal rights.”


ITEMID: 001-84563
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: BARSOM AND VARLI v. SWEDEN
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Corneliu Bîrsan;David Thór Björgvinsson;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Isabelle Berro-Lefèvre
TEXT: The applicants, Mr Afram Barsom and Mr Levent Varli, are Swedish nationals, who were born in 1962 and 1974 respectively and live in Södertälje. They were represented before the Court by Mr R. Armholt, a lawyer practising in Stockholm.
s, may be summarised as follows.
Mr Barsom owns 31.25% and Mr Varli owns 43.75% of the active shares of a limited company, Restaurang Välfunnet Holding AB, which in turn owns a restaurant, Restaurang Välfunnet. Both applicants are involved in the daily running of the restaurant which is open for lunch, dinner and, during weekends, a discotheque.
During 2004 the Tax Authority (Skatteverket) in Stockholm carried out a tax audit of the restaurant covering the period from June 2001 to July 2002. It found that the bookkeeping of the restaurant was severely deficient and that it had not kept the necessary evidence of the business’s expenses and sales. Based on certain calculations and statistics, the Tax Authority estimated that the restaurant had omitted to account for and declare all its sales in its bookkeeping and tax returns. Consequently, it found it necessary to make a discretionary assessment of the restaurant’s unrecorded sales, which it calculated at SEK 2,700,000 (approximately EUR 292,300) and to adjust its tax returns accordingly.
On 8 December 2004, on the basis of the results from the tax audit, the Tax Authority decided to increase the applicants’ income from business for the tax assessment years 2002 and 2003 and to impose tax surcharges on them amounting, in total, for Mr Barsom to SEK 106,084 (approximately EUR 11,460) and for Mr Varli to SEK 144,512 (approximately EUR 15,610). As the applicants, together with a third person, were the main owners of the company which owned the restaurant, and as they were in charge of its daily running, the Tax Authority found that most of the unrecorded sales from the restaurant were to be considered as taxable income, in the form of salary, for the applicants and the third person. Moreover, since the applicants had failed to provide correct and complete information concerning their income, the Tax Authority considered it justified to impose tax surcharges on them and found no grounds on which to remit the surcharges.
In January 2005 the applicants and the company appealed against the decisions to the County Administrative Court (länsrätten) of the County of Stockholm, disputing the Tax Authority’s findings and claiming that there were no grounds for changing their tax returns or imposing tax surcharges on them. In both their appeals and their supplementary submissions, the applicants stated that they wished to rely on the same grounds as the company had in its appeal and supplementary submissions to the court. The applicants and the company were represented by the same lawyer.
On 14 March 2005 the Tax Authority made the obligatory reassessment of its decisions of 8 December 2004 but decided not to change them. Following this, it forwarded the appeals to the County Administrative Court.
On 31 August 2005 the applicants requested the County Administrative Court to grant them legal aid to engage a lawyer to represent them. They referred to Article 6 § 3(c) of the Convention, claiming that since their cases concerned tax surcharges they had a right to free legal aid. The applicants stated that they lacked the means to pay for a lawyer since they had been obliged to pay the additional taxes and tax surcharges, as they had not been granted respite from the payment. Furthermore, they alleged that, as immigrants in Sweden, they did not have a complete command of Swedish or knowledge of the Swedish legal system and that their cases were complicated and involved significant amounts of money for them.
On 8 September 2005 the County Administrative Court rejected the applicants’ request. It first noted that, according to the Legal Aid Act (Rättshjälpslagen, 1996:1619), the possibilities for a businessman to be granted legal aid in tax matters were very limited and it could only be granted if there were special reasons. It further observed that Article 6 § 3(c) of the Convention laid down that a person was entitled to free legal assistance only if he could not afford it himself and the interests of justice so required. It also noted that the domestic case-law indicated that there was no absolute right to legal aid in cases involving tax surcharges but that regard must be had to the amount at stake (the tax surcharges) and the complexity and nature of the case. Turning to the particular circumstances of the applicants’ cases, the court considered that the material invoked by the parties was relatively voluminous but that the legal questions at issue and, in relation to these, the ancillary questions concerning tax surcharges were not of such a character as to warrant a grant of legal aid, under either Swedish law or the Convention.
The applicants appealed against the decisions to the Administrative Court of Appeal (kammarrätten) in Stockholm, repeating their claims and adding that, having regard to their financial situation, the tax surcharges amounted to substantial amounts for them. They added that they needed professional help to show that the Tax Authority’s audit report and decisions were flawed.
On 18 October 2005 the Administrative Court of Appeal upheld the lower court’s decisions in full.
The applicants lodged a further appeal to the Supreme Administrative Court (Regeringsrätten), which, on 5 April 2006, refused them leave to appeal.
The tax proceedings are still pending before the national courts.
The relevant rules concerning legal aid in Sweden are to be found in the Legal Aid Act (Rättshjälpslagen, 1996:1619 – hereinafter “the Act”). Section 7, paragraph 1, of the Act provides that legal aid may be granted if the person applying for it is in need of legal assistance and cannot obtain it by other means. Moreover, pursuant to section 8 of the Act, legal aid may only be granted if it is reasonable for the State to contribute to the costs, having regard to the nature and importance of the matter, the value of the contentious issue and other relevant circumstances. In any event, in matters concerning taxes and various fees for taxes, legal aid may be granted only when there are special reasons (section 11, paragraph 1, point 3).
Furthermore, section 13, paragraph 1, of the Act stipulates that legal aid may not be granted to a person who is, or has been, a businessman where the contentious issue has arisen in connection with the business, unless there are special reasons relating to the nature and limited scope of the business, his or her financial and personal situation and other relevant circumstances. The Act defines a businessman as a natural person who runs a business of an economic nature that can be described as professional, or who has a deciding influence over a legal entity which runs such a business (section 13, paragraph 2).
From the case-law of the national courts, it appears that when a case involves tax surcharges, Article 6 § 3(c) of the Convention is applicable, but that consideration must be given to the amount of the imposed tax surcharges as well as to the nature and character of the case. Moreover, only if there is a risk of particularly serious consequences or if complicated legal questions arise should free legal assistance be granted on the basis of the Convention in cases involving tax surcharges (Regeringsrättens Årsbok 2003 ref 56).
Section 8 of the Administrative Court Procedure Act (Förvaltningsprocesslagen 1971:291) requires the administrative courts to ensure that the circumstances of each case are clarified to the extent that its character demands. Where necessary, the courts must give directions for the case-file to be supplemented with the requisite information.


ITEMID: 001-57954
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 1995
DOCNAME: CASE OF BRYAN v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: No violation of Art. 6-1
JUDGES: John Freeland
TEXT: 7. The applicant, Mr John Bryan, is a farmer and a contractor. He was born in 1931 and resides in Warrington, Cheshire.
8. On 4 December 1989 an enforcement notice was issued and served on Mr Bryan by the Vale Royal Borough Council requiring the demolition of two brick buildings on land which the applicant had bought in 1987. The enforcement notice recited that there appeared to the Council to be a breach of planning control in that the two brick buildings had been erected without the necessary planning permission. The notice required the applicant to demolish the buildings and remove the building materials within three months. In doing so, the authorities acted in accordance with section 172 of the Town and Country Planning Act 1990, which consolidated earlier legislation ("TCPA" - see paragraph 18 below).
9. The applicant appealed to the Secretary of State for the Environment under section 174 (2) (a), (b), (g) and (h) TCPA (see paragraph 19 below).
10. In accordance with the relevant legislation (see paragraph 20 below), an inspector was appointed to conduct an inquiry and determine the appeal. He was a Principal Housing and Planning Inspector, a civil servant and a member of the salaried staff of the Department of the Environment. He had been appointed by the Secretary of State after approval of the Lord Chancellor. In his decision letter of 1 October 1990 the inspector rejected the appeal under grounds (a), (b), and (g) but allowed it under ground (h) to the extent that the compliance period should be extended from three to six months. He held, inter alia, as follows:
"The appeal on ground (b)
...
(12) What I need to decide in respect of this ground of appeal is whether, as a matter of fact and degree, the buildings could, from their appearance and layout, be considered to have been designed for the purposes of agriculture. I conclude, from examination of photographs taken during construction and from noting the alterations made since, that the Council were right to be concerned that the appeal buildings had the appearance of large detached houses. The size, layout, and original external appearance of the buildings and their detailing did little to change that view.
(13) In my opinion, as originally constructed, the buildings would have led any reasonable person to have concluded that he or she was looking at the start of a small new detached housing estate. Indeed, that appeared to be the widely held view of many local people, supported by the local Member of Parliament, who were concerned to see what was being built on the edge of the village. The more recent construction of an, as yet, uncompleted but similar building close to the two appeal buildings serves to compound the effect.
(14) But it is the original appearance of the two appeal buildings and particularly the first assessment of the Ministry of Agriculture, Fisheries and Food which convinces me that the buildings were not requisite or reasonably necessary for the purposes of agriculture. Numerous features of the buildings were more suited to houses than barns. The original openings in building No. 1 were said to be doorways for a veal calf unit. But this building did not incorporate internal drainage considered necessary for such stock. The doorways appeared to have been more likely to have been useful as window openings, none reached ground level as built; one was almost waist high above outside ground level measured from the lower edge of the unbonded brickwork added later. Other features in both buildings include the extensive use of Georgian-style windows and other windows made for domestic use. I understand that Mr Bryan’s contacts allowed him to buy these windows cheaply. But whatever their source, they contribute to an impression that the buildings look more like houses than barns. There are other features which add to that view. The use of domestic-style eaves and gable barge boarding. The residential look of the ‘porch’ to No. 1 building. And the [Ministry of Agriculture, Fisheries and Food’s] view about the uneconomic layout of both buildings as originally built all add to the impression that these buildings were not designed for agricultural purposes, albeit they have since been modified and adapted for such a use.
(15) You said that the buildings looked like many local old barns. But it is my view that, as originally built, the appeal buildings would have looked much more like houses. They did not look as if they had been designed for the purposes of agriculture. My opinion is not altered by my finding them now being used for storing hay. The appeal on ground (b) fails.
The appeal on ground (a)
(16) The appeal buildings lie in part of the green belt ... They also lie within the Higher Whitley Conservation Area but outside the village policy area for Higher Whitley shown on the draft Vale Royal Borough Local Plan. In my opinion, the decision turns on the following main issues. Whether, if the development is inappropriate to the green belt, there are any special circumstances to justify the granting of planning permission; secondly, whether the appeal buildings enhance or preserve the character or appearance of the conservation area. I shall also consider the effect of the development on the countryside surrounding the village.
(17) ...
(18) The appeal buildings have neither enhanced nor preserved the appearance of this part of the conservation area, rather the reverse. Much of the pleasant nature of the area is derived from the grouping of the older housing around the centre and from its rural and agricultural setting. The two appeal buildings look like part of a small estate of detached houses with access roads and suitable garden areas. The third building, not subject of this appeal, exacerbates this impression.
(19) These objections amount to sound and clear-cut reasons why planning permission should be withheld. The fact that other buildings or buildings of a broadly similar nature, if considered to be designed for agricultural purposes, could be built under the provisions of the Town and Country Planning General Development Order 1988, does not affect my decision. The appeal on ground (a) fails.
The appeal on ground (g)
(20) You said that demolition of the buildings and the removal of the materials was an excessive requirement. I do not agree. Harm to the purpose of the green belt has been caused. The appearance and character of the conservation area has not been either enhanced or preserved. Encroachment on the countryside has occurred. Making the buildings look more like those which might have been permitted development as you suggested could mitigate a little of the harm I have identified. But this is not just a matter of cosmetics. The main objections would remain. In my opinion, the proper and necessary course of action is that required by the notice. That includes removal of materials. Such a requirement would not preclude their re-use on site for any possible future permitted development. The appeal on ground (g) fails.
The appeal on ground (h)
(21) ... Mr Bryan wanted more time in order to erect a replacement or replacements before demolition. I see no need to insist on a period which would make undue difficulty for him. I will increase the period to 6 months ...
(22) I have taken account of all the other matters raised, including the possibility of your client putting up a large steel-clad building under permitted development rights, but find they do not affect my decision."
11. The applicant appealed against this decision under section 289 TCPA (see paragraph 24 below). In his Notice of Motion, the applicant first alleged that the inspector had "erred in law in applying the wrong test in deciding whether the buildings were permitted development under the provisions of the ... General Development Order" and "in considering that the said buildings were not requisite or reasonably necessary for the purposes of agriculture when there was no evidence upon which any reasonable inspector could so find". The subsequent grounds of appeal dealt expressly with grounds (a) and (g) of the appeal to the Secretary of State (see paragraph 9 above).
12. The appeal was dismissed by the High Court on 8 March 1991, the judge, Mr Lionel Read, QC, finding inter alia as follows:
"A principal argument on behalf of the applicant at the inquiry under [ground] (b) was that the erection of the two buildings was permitted development under the General Development Order ...
...
The applicant does not challenge the inspector’s decision under ground (b). Nevertheless paragraphs 14 and 15 of the decision letter, where he is still dealing with that ground, are relevant to the court’s consideration of his decision on grounds (a) and (g) ...
...
In my judgment ... it cannot be said that the inspector failed to take into account the fact that the applicant might, within his General Development Order rights, erect buildings of a broadly similar nature. He addressed that very consideration in terms at paragraph 19 of his decision letter. Because the applicant had those rights and wanted more time to erect a replacement or replacements, the inspector extended the applicant’s time for complying with the enforcement notice under ground (h).
Whether the existence of these General Development Order rights provided sufficient reason for the inspector to grant planning permission for the buildings in fact erected, whether or not conditioned as suggested by the applicant, was a matter for judgment - the inspector’s judgment. Whether another decision-maker would have reached the same conclusion as did this inspector is not to the point. Nor is the view of this court, which does not sit on appeal from the judgment of inspectors, relevant. I am unable to say that there was anything irrational in the inspector’s decision. In particular, the question whether the alterations proposed to a building were, as he evidently thought, a ‘matter of cosmetics’ and would not meet the main objections was entirely a matter of planning judgment for him. It is to be remembered that, in order to stay within his General Development Order rights, the applicant must erect replacement buildings which, by their appearance and layout, could be considered as designed for the purposes of agriculture. If they are, their effect on the green belt, the countryside and the conservation area is irrelevant to the exercise of that right. That does not, however, in my judgment mean that the inspector acted irrationally in concluding that the buildings in fact erected without permission under the General Development Order were objectionable and should be demolished.
In the result, I find no error of law and I dismiss the application."
13. At the hearing held before the European Commission of Human Rights on 14 October 1993, the applicant’s representatives stated that, although they had not represented the applicant before the High Court, they surmised that the challenge to the inspector’s ground (b) reasoning had been raised in the Notice of Motion and then abandoned at the hearing because of the limited jurisdiction of the High Court. In confirmation of this, the applicant furnished the Court with a statement by the barrister who had represented him in the High Court.
14. Leave to appeal to the Court of Appeal was refused. The Court of Appeal, on 11 June 1991, also refused leave to appeal.
15. Under section 57 TCPA, planning permission is required for the carrying out of any development on land. Section 58 TCPA allows for planning permission to be granted by a development order.
16. The Town and Country Planning General Development Order 1988 SI no. 1813 ("TCPGDO") sets out classes of development for which permission is automatically granted.
According to Article 3 TCPGDO, and Class A of Part 6 of Schedule 2 to the TCPGDO, planning permission is deemed granted for the following developments:
"A. The carrying out on agricultural land comprised of an agricultural unit of -
(a) works for the erection, extension or alteration of a building, or
(b) any excavation or engineering operations, reasonably necessary for the purposes of agriculture within that unit."
17. Accordingly, buildings, structures or works not designed for the purposes of agriculture require planning permission (paragraph A.1 (c) of Class A of Part 6 of Schedule 2 to the TCPGDO).
18. Where it appears to the local planning authority that there has been a breach of planning control and the authority consider that it is expedient to do so, they may issue an enforcement notice requiring the breach to be remedied (section 172 TCPA).
19. Section 174 (2) TCPA provides that an appeal against an enforcement notice may be made to the Secretary of State on any of the following grounds:
"(a) that planning permission ought to be granted for the development to which the notice relates or, as the case may be, that a condition or limitation alleged in the enforcement notice not to have been complied with ought to be discharged;
(b) that the matters alleged in the notice do not constitute a breach of planning control;
...
(g) that the steps required by the notice to be taken exceed what is necessary to remedy any breach of planning control or to achieve a purpose specified in section 173 (4);
(h) that the period specified in the notice as the period within which any step is to be taken falls short of what should reasonably be allowed."
20. Section 175 (3) TCPA provides that if an appellant or the local authority desires, the Secretary of State shall give each of them the opportunity of appearing before and being heard by a person appointed by the Secretary of State for the purpose. Where such a person has determined an appeal, his decision shall be treated as that of the Secretary of State. Pursuant to the applicable regulations, appeals against enforcement notices are heard and determined by an inspector.
21. According to the Planning Inspectorate Executive Agency Framework Document (1992), "staff of the Inspectorate act on behalf of the [Secretary] of State for the Environment ... This work includes that of inspectors who, exercising their own independent judgment, decide cases or make recommendations to the ... Secretary of State ..." (paragraph 2.2). The process of decision-making on appeals has a "quasi-judicial character" (paragraph 2.4). The Inspectorate, which "upholds the principles of openness, fairness and impartiality" (paragraph 2.6), is "subject to the scrutiny of the Courts, the Parliamentary Commission for Administration and the Council on Tribunals ..." (paragraph 2.6). Among the objectives of the Inspectorate is that of maintaining "the integrity of each inspector as an independent tribunal, not subject to any improper influence" (paragraph 2.7 (ii)).
Annex B to the Framework Document adds:
"Each inspector must exercise independent judgment and must not be subject to any improper influence, nor must it appear that the inspector may be subject to any such influence."
The basic principles set out in this document had long been applied in practice.
22. In determining planning appeals, inspectors are required to have regard, inter alia, to the policies promulgated by the Secretary of State on matters of planning as a "material consideration" (section 70 TCPA) and to comply with the various procedural rules for the conduct of enforcement appeals (the Town and Country Planning (Enforcement Notices and Appeals) Regulations 1981, and the Town and Country Planning (Enforcement) (Inquiries Procedure) Rules 1981). Like any other person exercising statutory powers, the inspector must also act in a procedurally fair manner.
23. Decisions by inspectors are not seen by the Department of the Environment in draft before they are promulgated. However, up until the time when the decision letter is issued, the Secretary of State may revoke the power of an inspector to decide an appeal (Schedule 6 to the TCPA).
24. Section 289 TCPA provides for appeals against a decision of the Secretary of State under section 174. An appeal may be made to the High Court on a point of law, or the Secretary of State may be required to state a case for the opinion of the High Court (section 289 (1) TCPA).
25. It is common ground that an appeal "on a point of law" may be brought on grounds identical to an application for judicial review. It therefore includes a review as to whether a decision or inference based on a finding of fact is perverse or irrational (R. v. Secretary of State for the Home Department, ex parte Brind [1991] Appeal Cases 696, pp. 764 H-765 D). The High Court will also grant a remedy if the inspector’s decision was such that there was no evidence to support a particular finding of fact; or the decision was made by reference to irrelevant factors or without regard to relevant factors; or made for an improper purpose, in a procedurally unfair manner or in a manner which breached any governing legislation or statutory instrument. However, the court of review cannot substitute its own decision on the merits of the case for that of the decision-making authority (see paragraph 12 above).
26. As an appeal to the High Court under section 289 (1) is on a point of law, the High Court has no power to receive further evidence on primary facts (Green v. Minister of Housing and Local Government [1963] 1 All England Law Reports 578, p. 616). Halsbury’s Statutes of England and Wales, 4th edition, vol. 46 (1990 reissue) describes many of the cases on the question of whether a point is one of fact or of law as "irreconcilable" (p. 836). Halsbury’s Laws of England states that "if there is no evidence for a particular finding or if the tribunal does not take into account at all a relevant consideration, there could well be grounds of appeal raising a question of law. The contention that a tribunal has failed to give adequate weight to evidence or sufficient consideration to a particular circumstance does not afford such grounds; and the weight which a tribunal gives to a particular piece of evidence or a particular consideration is a matter for that tribunal" (Halsbury’s Laws of England, 4th edition, vol. 46 (1992 reissue), p. 698).
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-75126
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: KELLER v. HUNGARY
IMPORTANCE: 2
CONCLUSION: Inadmissible
TEXT: The applicant, Mr László Keller, is a Hungarian national, who was born in 1955 and lives in Budaörs. He is represented before the Court by Mr K. Bárd, a lawyer practising in Budapest, and Ms Helen Duffy, Legal Director of the International Centre for the Legal Protection of Human Rights (INTERIGHTS), London. The respondent Government are represented by Mr L. Höltzl, Deputy State-Secretary, Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant is a Member of Parliament and delegate of the Hungarian Socialist Party. The Socialist Party was in opposition between 1998 and 2002. At the material time, the applicant was deputy head of the parliamentary group of his party and member of the Budgetary and Financial Permanent Committee.
On 19 December 2000, at a parliamentary session concerning ‘prompt questions and answers’, the applicant addressed a question to the Prime Minister about the existence of any relationship between the incumbent Minister of Agriculture and Regional Development (J.T.) and some foreign extreme right-wing groups. The Prime Minister answered that he was unaware of such a relationship and that he was sceptical about characterising certain groups as extreme right-wing.
Being dissatisfied with the answer, the applicant said:
“I cannot exclude the possibility that the lack of investigation into the system of connections I was referring to could be affected perhaps by the fact that your Minister’s – your responsible Minister’s – father is a member of the Hungarista movement that I mentioned.”
(“Nem tudom azt kizárni, hogy azért, mert nem indult vizsgálat még abban a kapcsolati rendszerben, amire én utaltam, esetleg közrejátszik az, hogy éppen az Ön miniszterének, felelős miniszterének az édesapja annak a hungarista mozgalomnak a tagja, amelyre én utaltam.”)
In his reply, the Prime Minister said:
“Well, ladies and gentlemen, I am not sure if I have understood everything precisely, if that were the case, may Mr Deputy excuse me, it must be my fault. Although I do not know the family of [J.T.] particularly well, which should perhaps not be a reproach against me, I believe Mr Minister’s father died when Mr Minister was 15. It is therefore quite difficult to establish whether or not he was a Hungarista.”
On 20 December 2000 an article under the title The “Hungarists” have been encouraged by foreigners to support [Minister J.T.] was published in the national daily newspaper Magyar Hírlap. In the article it was stated that,
“... according to the [applicant], the lack of investigation into a matter of national security could be related to the fact that the father of E.D., the Minister without portfolio supervising the Civilian Secret Services, participated in the Hungarista movement.”
The applicant states that E.D.’s father published articles in right-wing Hungarian periodicals affiliated with groups that had personal relations to the Hungarista movement abroad.
On 23 December 2000 the applicant gave a detailed interview in the television programme Tények (“Facts”). For the first time, he specified that the “responsible Minister” was indeed E.D. – rather than J.T. – and that the statement quoted above related to him and his father.
On 25 January 2001 E.D. and his father brought a civil action against the applicant alleging that the incriminated statement had violated their ‘personality rights’ (személyhez fűződő jogok). E.D. contended that it amounted to accusing him of having abused his administrative authority, conduct potentially susceptible to prosecution. He also asserted that it was capable of influencing, in a negative way, the appraisal of his activity as Minister and that of his personality as a public figure. Therefore, he sought the declaration of a violation of his personality rights, 900,000 Hungarian forints (HUF) in compensation and an injunction obliging the applicant to apologise in public.
The Budaörs District Court held hearings on 19 June and 30 October 2001. On the latter date the District Court separated E.D.’s action from that of his father, and found that there had been a violation of E.D.’s personality rights. It held that the applicant had made a statement of fact regarding the absence of an investigation and the underlying reasons, together with a negative appraisal of the Minister’s conduct, both of which could harm the Minister’s reputation.
The court referred to the fact that the Minister was a well-known figure in public life, noting that allegations against such a person were bound to come to the public’s knowledge and that therefore his reputation could be seriously affected. It also noted that the statement concerned had undermined the plaintiff’s political credibility and – having special regard to the upcoming 2002 elections – was capable of substantially reducing his reputation in the voters’ eyes.
The court found that the burden of proof was on the applicant, in whose interests it was to prove the truth of the alleged facts, namely, the absence of an investigation and the reasons for it. Notwithstanding the court’s reminder to this effect, the applicant did not provide such evidence, since he stated that he ‘was of a different legal opinion’.
Relying on sections 78 and 84(1) of the Civil Code, the District Court declared that E.D.’s personality rights had been violated and ordered the applicant to pay HUF 700,000 in compensation for non-pecuniary damage, HUF 42,500 in legal costs and HUF 51,000 in stamp duty. Moreover, the applicant was ordered to have the decision published in the daily newspaper Magyar Hírlap within 15 days, and to make its contents public in the television programme Tények, all at his expense. Finally, the court ordered him to refrain from any further infringement of E.D.’s personality rights.
The applicant appealed. He argued, inter alia, that he could not be reproached for having knowingly made untrue statements since the plaintiff himself had declared not to have been under any obligation to initiate the investigation in question. Moreover, the incriminated statement, in so far as it concerned the plaintiff’s father, was in his view not susceptible to proof in the instant proceedings, since that issue had been disjoined and was being dealt with in separate proceedings.
After a hearing on 14 February 2002, the Pest County Regional Court partly amended the District Court’s decision on 21 February 2002. It held as follows:
“The findings of fact of the first-instance court were correct.
Contrary to the defendant’s view, the court was not wrong when it considered the defendant’s liability for the publications in Magyar Hírlap and what had been said in Tények ..., notwithstanding that, either in the article or the television programme, the impugned statements had not been made by the defendant himself.
The plaintiff did not base his [claims] on the fact that the defendant had been interviewed in Magyar Hírlap and [Tények] which violated [E.D.’s] reputation, in breach of section 78 of the Civil Code. The [subject matter] of the action was the statement made by the defendant in Parliament, having regard to the fact that it had been published in Magyar Hírlap, and that the defendant had explained in [Tények] that it concerned the plaintiff’s father and that the responsible Minister was the plaintiff. In the Regional Court’s view, the action may not be interpreted narrowly, namely as if it had been aimed at obtaining legal protection only for what had been published in the media. ...
The defendant made the impugned statement in Parliament, in his capacity as an MP. He cannot successfully argue that, since he did not agree to its ... publication, he is not liable for the contents of the statement which appeared in the media, because, given the circumstances of the statement and having regard to the obvious role the press plays in informing the general public of the activities of Parliament, he could expect that his statement would appear in the press.
The report, broadcast in Tények, as a whole – rather than just what the defendant had said himself – amounted to the reiteration of the impugned statement, since the defendant’s utterance in the programme – ‘When I am speaking of the Office of National Security, I think the Minister responsible for the investigation may be E.D.’ – was aimed at clarifying his reference in Parliament to the ‘responsible Minister’ and identifying the person unambiguously.
In these circumstances, the statement ... in Tények was an authentic and more precise reiteration of what the defendant had said in Parliament.”
The Regional Court agreed with the District Court in finding that the defendant’s statement was a statement of fact concerning the plaintiff’s work and that such a statement might give rise to a violation of the individual’s personality rights. The court reiterated the Constitutional Court’s jurisprudence, according to which, insofar as views on or criticism of politicians are concerned, freedom of expression is subject to less restriction. However, in the court’s opinion, the sentence in question contained, in an implicit way, a statement of fact, namely, that E.D.’s personal implications might have led to the omission of a national security investigation, that is, the plaintiff substantially breached his official duties for personal reasons. For the court, the applicant’s statement exceeded the freedom of expression guaranteed by the Constitution, which must not be exercised in a manner infringing the personality rights of others, even if the person concerned was a public figure.
The court went on to state that,
“An examination of the truth of the defendant’s statements about the plaintiff’s father falls outside the scope of the present case – and not only because of the separation of the action brought by the plaintiff’s father. In the instant case the court is called on to examine whether or not the defendant’s statement – namely that it was the personal implication of the plaintiff, the competent Minister, that led to the omission of a national security investigation – is a true statement of fact. The decision on this question is independent of the truth of the defendant’s statement about the plaintiff’s father.”
The court concluded that the applicant had failed to prove that E.D. had breached his duties on account of his personal interests.
The Regional Court upheld the first-instance court’s decision in its part concerning the award payable by the applicant. It reduced the procedural fees due and exempted the applicant from having to arrange for a rectification to be broadcast on television.
“Members of Parliament may ... address an interpellation or a question to the Government, members of the Government and the Attorney General, concerning any subject belonging in their field of competence.”
“(3) Members of the Government may participate in, and ask for the floor at, the sessions of Parliament.”
“(1) ... members of the Government ... may participate in, and ask for the floor at, the sessions of Parliament.”
“(1) Any person, to whom an interpellation or a question may be addressed according to the Constitution, is under a duty to reply thereto in person or exceptionally through his deputy.”
“(1) In parliamentary sessions, at least sixty minutes per week shall be secured, at a time designated in the agenda, for asking and answering questions directly (an hour of prompt questions).”
“(1) The protection of personality rights shall also include the protection of a good reputation.
(2) In particular, the statement or dissemination of an injurious and untrue fact concerning another person – or the presentation, with untrue implications, of a true fact relating to another person – shall constitute defamation.”
a) a claim that the court establish that an infringement has taken place;
b) a claim that the infringement be discontinued and the perpetrator be forbidden from further infringements;
c) a claim that the perpetrator be ordered to give satisfaction by making a declaration or in any other appropriate manner and, if necessary, this be made adequately public by, or at the expense of, the perpetrator;
d) a claim that the prejudicial situation be terminated, and that the situation prior to the infringement be restored by, or at the expense of, the perpetrator ...;
e) a claim for damages under the rules of civil law liability.”
“An official person who, with the aim of causing unlawful disadvantages or benefiting from unlawful advantages, breaches his official duty, transgresses his competence or otherwise misuses his official position, commits a felony and shall be punishable with imprisonment of up to three years.”
“A statement of fact alone may also qualify as an opinion, since the circumstances of a certain statement themselves may reflect an opinion; in other words, the basic constitutional right to freedom of expression is not restricted to value judgments only.”
“...it is a ‘constitutional requirement’ (alkotmányos követelmény) that the deputies’ non-answerability (képviselői felelősségmentesség) covers their utterances of opinions expressing value judgments which concern their fellow deputies, other persons exercising public authority or public political figures, and have been made in the context of discussions of public matters. In proceedings for the suspension of [a deputy’s] immunity, it is also a pre-eminent constitutional requirement that – in cases where a fact capable of harming the reputation of a public political figure was stated or disseminated, or an expression directly referring to such a fact was used [by the deputy] – the deputy’s immunity be suspended exclusively if he knew that the utterance was untrue in essence.”
“A political opinion cannot be examined or qualified by a court from the perspective of whether it is correct or wrong. ... A political opinion in itself does not infringe the personality right ... of a public figure in political life even if the person concerned finds it unjust, false and consequently insulting.”
“... defamation can be established on the basis of such untrue expressions, adversely affecting the reputation of a person, which contain explicit or implicit statements of fact. ... An expression of opinion, a value judgment concerning the activities of a public figure does not warrant, in itself, the protection of personality rights ... even if it is extreme or exaggerated.”
“...the defendant alleged in his speech in Parliament that the plaintiff had committed a criminal offence. This is a statement of an untrue fact which infringed the plaintiff’s reputation. ...
...the defendant cannot be dispensed from the objective and subjective sanctions for the infringement of personality rights by relying on the fact that he made the impugned facts public in Parliament, as a deputy. ... A deputy’s immunity does not cover civil liability, and an infringement cannot be excused by the fact that it has been committed by a deputy acting in that capacity.”
According to section 1 of Act no. 56 of 1990 on the Remuneration of Members of Parliament, as amended, the deputies’ remuneration consists of basic (alapdíj) and supplementary (pótdíj) remuneration. In 2002, the basic remuneration was five times the basic salary of civil servants (köztisztviselői illetményalap), which was HUF 33,000 under Act no. 133 of 2000 on the 2001 and 2002 Budget of the Republic of Hungary (section 53). Under section 2 of Act no. 56 of 1990, the deputy head of the parliamentary group of a political party was entitled to a 100% supplement, the member of a permanent parliamentary committee to a 40% supplement, and the member of the Budgetary and Financial Permanent Committee to an additional 40% supplement. According to these rules, the applicant was entitled to a global gross remuneration of HUF 462,000.