ITEMID: 001-57479
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: CHAMBER
DATE: 1976
DOCNAME: CASE OF ENGEL AND OTHERS v. THE NETHERLANDS
IMPORTANCE: 2
CONCLUSION: Violation of Art. 5-1;Violation of Art. 6-1;No violation of Art. 6-2;No violation of Art. 6-3-b;No violation of Art. 6-3-c;No violation of Art. 6-3-d;No violation of Art. 14+6;Just satisfaction reserved
TEXT: 11. The facts of the case may be summarised as follows:
12. All applicants were, when submitting their applications to the Commission, conscript soldiers serving in different non-commissioned ranks in the Netherlands armed forces. On separate occasions, various penalties had been passed on them by their respective commanding officers for offences against military discipline. The applicants had appealed to the complaints officer (beklagmeerdere) and finally to the Supreme Military Court (Hoog Militair Gerechtshof) which in substance confirmed the decisions challenged but, in two cases, reduced the punishment imposed.
Mr. Engel
33. In March 1971, Mr. Engel was serving as a sergeant in the Netherlands Army. He in fact lived at home during off-duty hours. The applicant was a member of the Conscript Servicemen's Association (Vereniging van Dienstplichtige Militairen - V.V.D.M.) which was created in 1966 and aims at safeguarding the interests of conscripts. It was recognised by the Government for taking part in negotiations in this field and its membership included about two-thirds of all conscripts.
Mr. Engel was a candidate for the vice-presidency of the V.V.D.M. and on 12 March he submitted a request to his company commander for leave of absence on 17 March in order to attend a general meeting in Utrecht at which the elections were to be held. He did not, however, mention his candidature.
Subsequently he became ill and stayed home under the orders of his doctor who gave him sick leave until 18 March and authorised him to leave the house on 17 March. On 16 March, the company commander had a talk with the battalion commander and it was agreed that no decision should be taken regarding the above-mentioned request pending further information from the applicant who had given no notice of his absence or return. However, on the following day a check was made at the applicant's home and it was discovered that he was not there. In fact, he had gone to the meeting of the V.V.D.M. where he had been elected vice-president.
34. On 18 March Mr. Engel returned to his unit and on the same day his company commander punished him with four days' light arrest for having been absent from his residence on the previous day.
The applicant considered this penalty a serious interference with his personal affairs in that it prevented him from properly preparing himself for his doctoral examination at the University of Utrecht which had been fixed for 24 March. According to the applicant, he had made several attempts on 18 March to speak to an officer on this point but without success. Believing that under the army regulations non-commissioned officers were allowed to serve their light arrest at home, he left the barracks in the evening and spent the night at home. However, the next day his company commander imposed a penalty of three days' aggravated arrest on him for having disregarded his first punishment.
The applicant, who had just been informed that, with effect from 1 April 1971, he had been demoted to the rank of private, again left the barracks in the evening and went home. He was arrested on Saturday 20 March by the military police and provisionally detained in strict arrest for about two days, by virtue of Article 44 of the 1903 Act (paragraph 26 above). On Monday 22 March his company commander imposed a penalty of three days' strict arrest for having disregarded his two previous punishments.
35. The execution of these punishments was suspended by ministerial decision in order to permit the applicant to take his doctoral examination which he passed on 24 March 1971. Moreover, on 21, 22 and 25 March Mr. Engel complained to the complaints officer about the penalties imposed on him by the company commander. On 5 April the complaints officer decided, after having heard the parties, that the first punishment of four days' light arrest should be reduced to a reprimand, the second punishment of three days' aggravated arrest to three days' light arrest, and the third punishment of three days' strict arrest to two days' strict arrest. In the last two cases the decision was based on the fact that the previous punishment(s) had been reduced and that the applicant had obviously been under considerable stress owing to his forthcoming examination. The complaints officer further decided that Mr. Engel's punishment of two days' strict arrest should be deemed to have been served from 20 to 22 March, during his provisional arrest.
36. On 7 April 1971 the applicant appealed to the Supreme Military Court against the decision of the complaints officer relying, inter alia, on the Convention in general terms. The Court heard the applicant and obtained the opinion of the State Advocate for the Armed Forces. On 23 June 1971, that is about three months after the date of the disciplinary measures in dispute, the Court confirmed the contested decision. It referred to Article 5 para. 1 (b) (art. 5-1-b) of the Convention and held that the applicant's detention had been lawful and had been imposed in order to secure the fulfilment of an obligation prescribed by law. The system under the 1903 Act and the applicable Regulations required in fact that every serviceman should submit to and co-operate in maintaining military discipline. This obligation could be enforced by imposing disciplinary punishments in accordance with the procedure prescribed by the above Act. In these circumstances, the applicant's punishment of two days' strict arrest had been justified in order to secure the fulfilment of that obligation.
The applicant had not received the assistance of a legally trained person at any stage in the proceedings against him; perusal of the file in the case does not reveal if he asked for such assistance.
Mr. van der Wiel
37. Mr. van der Wiel, at the time of his application to the Commission, was serving as a corporal in the Netherlands Army. On the morning of 30 November 1970 he was about four hours late for duty. His car had broken down during his weekend leave and he had had it repaired before returning to his unit instead of taking the first train. On these grounds, the acting company commander, on the same day, imposed a penalty of four days' light arrest on the applicant. The following day he revised the above grounds to include a reference that the applicant had not previously requested the commander's leave of absence.
38. On 2 December, the applicant complained about his punishment to the complaints officer invoking, inter alia, Articles 5 and 6 (art. 5, art. 6) of the Convention. In this respect he alleged that he had been deprived of his liberty by a decision which, contrary to the requirements of Article 5 (art. 5), had not been taken by a judicial authority; that furthermore his case had not been heard by an independent and impartial tribunal (Article 6 para. 1) (art. 6-1); that he did not have adequate time and facilities for the preparation of his defence (Article 6 para. 3 (b)) (art. 6-3-b), and that he did not have legal assistance (Article 6 para. 3 (c)) (art. 6-3-c).
39. On 18 December, following the rejection by the complaints officer of his complaint on 16 December, the applicant appealed to the Supreme Military Court. On 17 March 1971, the Court heard the applicant, who was assisted by a lawyer, Sergeant Reintjes, and obtained the opinion of the State Advocate for the Armed Forces. The Court then quashed the complaints officer's decision but confirmed the punishment of four days' light arrest imposed on the applicant on the original grounds stated on 30 November 1970.
The Court first found that Article 6 (art. 6) of the Convention was not applicable in a case where neither the determination of a criminal charge nor the determination of civil rights and obligations was in question. The Court referred to the definition of military disciplinary offences contained in Article 2 of the 1903 Act (paragraph 15 above) and concluded therefrom that disciplinary proceedings clearly did not fall within the scope of Article 6 (art. 6). Nor was there any substance in the applicant's argument that, since a conscripted man had not volunteered to come within the jurisdiction of the military authorities, any disciplinary measure imposed upon him in fact had a criminal character.
As regards the complaints based on Article 5 (art. 5), the Court first held that four days' light arrest did not constitute "deprivation of liberty". In the alternative, the Court further stated that the disputed punishment was meant to "secure the fulfilment of (an) obligation prescribed by law", within the meaning of Article 5 para. 1 (b) (art. 5-1-b).
40. At first and second instance in the proceedings Mr. van der Wiel had not received any legal assistance, and during the proceedings before the Supreme Military Court the legal assistance granted to him had, in line with the practice described above at paragraph 32, been restricted to the legal aspects of the case.
Mr. de Wit
41. Mr. de Wit, at the time of his application to the Commission, was serving as a private in the Netherlands Army. On 22 February 1971, he was sentenced to committal to a disciplinary unit for a period of three months by his company commander on the grounds that, on 11 February 1971, he had driven a jeep in an irresponsible manner over uneven territory at a speed of about 40 to 50 km. per hour; that he had not immediately carried out his mission, namely to pick up a lorry at a certain place, but that he had only done so after having been stopped, asked about his orders and summoned to execute them at once; that, in view of his repeatedly irregular behaviour and failure to observe discipline, he had previously been warned about the possibility of being committed to a disciplinary unit.
On 25 February, the applicant complained about his punishment to the complaints officer alleging, inter alia, violations of the Convention. On 5 March, the complaints officer heard the applicant who was assisted by Private Eggenkamp, a lawyer and member of the central committee of the V.V.D.M., such assistance having been granted by reason of the fact that the applicant had invoked the Convention. The complaints officer also examined six witnesses, including one, namely Private de Vos, on the applicant's behalf, and then confirmed the punishment while altering slightly the grounds stated therefore. He rejected the allegations under the Convention, referring to a judgment of the Supreme Military Court dated 13 May 1970.
On 11 March, the applicant appealed to the Supreme Military Court against that decision. In accordance with Article 64 of the 1903 Act, the applicant's successive appeals had the effect of suspending execution of his punishment (paragraph 28 above). The Court heard the applicant and his above-mentioned legal adviser and obtained the opinion of the State Advocate for the Armed Forces. On 28 April 1971, the Court, without mentioning the applicant's previous behaviour, reduced the punishment to twelve days' aggravated arrest, which sentence was executed thereafter. It considered that, in the circumstances, the committal to a disciplinary unit for three months was too heavy a penalty.
42. The applicant alleges that in his case the calling of two other witnesses on his behalf, namely Privates Knijkers and Dokestijn, was prevented at every juncture. He also complains that the legal assistance granted to him had been restricted to the legal aspects of his case.
Mr. Dona and Mr. Schul
43. Mr. Dona was serving as a private in the Netherlands Army at the time of his application to the Commission. As editor of a journal called "Alarm", published in stencilled form by the V.V.D.M. at the General Spoor barracks at Ermelo, he had collaborated in particular in the preparation of no. 8 of that journal dated September 1971. Acting in pursuance of the "Distribution of Writings Decree", a ministerial decree of 21 December 1967, the commanding officer of the barracks provisionally prohibited the distribution of this number, whose contents he considered inconsistent with military discipline.
On 28 September, two officers met in commission on the instructions of the commanding officer in order to hold an enquiry into the appearance of the said number. The applicant, among others, was heard by the commission.
On 8 October 1971, the applicant was sentenced by his competent superior to three months' committal to a disciplinary unit for having taken part in the publication and distribution of a writing tending to undermine discipline. The decision was based on Article 2 para. 2 of the 1903 Act, read in conjunction with the first paragraph of Article 147 of the Military Penal Code which provides:
"Any person who, by means of a signal, sign, dumb show, speech, song, writing or picture, endeavours to undermine discipline in the armed forces or who, knowing the tenor of the writing or the picture, disseminates or exhibits it, posts it up or holds stocks of it for dissemination, shall be liable to a term of imprisonment not exceeding three years."
Entitled "The law of the strongest" (Het recht van de sterkste), the article objected to in no. 8 of "Alarm" alluded to a demonstration that had taken place at Ermelo on 13 August 1971 on the initiative of the executive committee of the V.V.D.M. According to Mr. van der Schans, the demonstration was terminated almost at once since the demonstrators had promptly returned to their quarters following the promise by the commanding officer that, if they did so, no disciplinary sanctions would ensue. Nevertheless, a few soldiers were allegedly transferred soon afterwards for having participated in the incident.
The passages in the article which gave rise to the disciplinary punishment of 8 October 1971 read as follows:
(a) "There happens to be a General Smits who writes to his 'inferiors' 'I will do everything to keep you from violating the LAW'! But this very General is responsible for the transfers of Daalhuisen and Duppen. Yet, as you know, measures are never allowed to be in the nature of a disguised punishment. How devoted to the law the General is - as long as it suits him";
(b) "... in addition to ordinary punishments, the army bosses have at their disposal a complete series of other measures - of which transfer is only one - to suppress the soldiers. That does not come to an end by questions in Parliament - that makes them at most more careful. That only comes to an end when these people, who can only prove their authority by punishment and intimidation, have to look for a normal job."
44. The decision ordering the applicant's committal to a disciplinary unit referred to the extracts quoted above. Furthermore, the decision took into account some aggravating circumstances: Mr. Dona had collaborated in the publication of no. 6 of the journal, which had likewise been prohibited under the "Distribution of Writings Decree" by reason of its objectionable contents; in addition, he had taken part in the demonstrations at Ermelo and had, in particular, published in connection therewith a pamphlet, for which he received on 13 August 1971 a punishment of strict arrest.
45. Mr. Schul, a private in the Netherlands Army at the time of his application to the Commission, was also an editor of the journal "Alarm". The facts regarding his case are identical to those of Mr. Dona's except that his punishment initially amounted to four months' committal to a disciplinary unit owing to the additional aggravating circumstance of his participation in the publication of an "Information Bulletin" for new recruits the distribution of which had been prohibited by reason of its negative content.
46. As early as 8 October 1971, the two applicants announced their intention to complain about their punishment. According to them, they were then asked to refrain from any further publication while proceedings were pending against them. The Government maintain that they were only requested not to publish other articles tending to undermine military discipline. The applicants replied before the Court that they had not the slightest intention to write such articles and that they had emphasised this on 28 September 1971 before the commission of enquiry. According to the report of the latter, Mr. Dona had declared that it was not at all his aim to write articles that he expected to be prohibited, and Mr. Schul is recorded as saying: "When we produce pamphlets of this kind, it is not our intention that they should be prohibited. The intention is that they should be read. The risk of their being prohibited is great."
Be that as it may, the applicants refused to give the undertaking requested and they were thereupon both placed under aggravated arrest in accordance with Article 20 of the 1903 Act.
47. The applicants complained about their punishment to the complaints officer who on 19 October confirmed it, while in the case of Mr. Dona slightly modifying the grounds. He rejected the applicants' submissions, including those concerning Articles 5, 6 and 10 (art. 5, art. 6, art. 10) of the Convention. In connection with Articles 5 and 6 (art. 5, art. 6), he referred to a decision of the Supreme Military Court delivered on 13 May 1970. The complaints officer also specified that the applicants should remain in interim custody in accordance with Article 20 of the 1903 Act.
48. The applicants appealed to the Supreme Military Court, Mr. Schul on 21 October and Mr. Dona on the next day, invoking Articles 5, 6 and 10 (art. 5, art. 6, art. 10) of the Convention.
Pursuant to Article 64 of the 1903 Act, the successive complaints and appeals by the applicants suspended their committal to a disciplinary unit but not their interim custody (paragraph 28 above).
On 27 October 1971, the Court ordered release of the applicants after they had promised to accept the Court's judgment on the merits of the case, to comply therewith in the future and, while proceedings were pending against them, to refrain from any activity in connection with the compilation and distribution of written material the contents of which could be deemed to be at variance with military discipline. According to the applicants, this undertaking was given only in extremis as there was no legal remedy available to terminate their interim custody.
Like Mr. de Wit, the applicants had been assisted before the Court by Private Eggenkamp who was, however, able only to deal with the legal aspects of their case (paragraphs 41-42 above).
49. On 17 November 1971 the Supreme Military Court confirmed Mr. Dona's committal to a disciplinary unit for three months, reduced Mr. Schul's committal from four to three months and modified slightly the grounds for punishment in both cases. The Court rejected as being ill-founded the applicants' allegations. Making mention in both cases of their previous conduct and convictions, the Court recalled particularly that they had previously participated in the publication and distribution of writings that were prohibited on the basis of the decree of 21 December 1967 (paragraphs 44-45 above). When fixing the punishment, the Court deemed these factors to be indicative of their general behaviour.
The Court then dealt with the applicants' allegations under Articles 5, 6 and 10 (art. 5, art. 6, art. 10) of the Convention, and also rejected them.
As regards Article 5 (art. 5), the Court held that the obligation to serve in a disciplinary unit did not constitute "deprivation of liberty". In the alternative, adopting reasoning similar to that contained in its decision on Mr. Engel's appeal (paragraph 36 above), the Court found that the disputed punishments had been justified under Article 5 para. 1 (b) (art. 5-1-b).
On the issue of Article 6 para. 1 (art. 6-1), the Court considered that the disciplinary proceedings relating to the publication of the journal "Alarm" had involved the determination neither of any "civil right", such as freedom of expression, nor of any "criminal charge"; on the latter point, the Court based its decision on reasons similar to those given in the decision on Mr. van der Wiel's appeal (paragraph 39 above).
The applicants also contended that the measures taken against them interfered with their freedom of expression. In this respect, the Court relied on paragraph 2 of Article 10 (art. 10-2); in its opinion, the restrictions objected to had been necessary in a democratic society for the prevention of disorder within the field governed by Article 147 of the Military Penal Code.
Finally, the applicants maintained that their interim custody had been inconsistent with Article 5 para. 1 (c) (art. 5-1-c) of the Convention and claimed compensation on this account under Article 5 para. 5 (art. 5-5). The Court held that it had no competence to examine and decide such a claim.
50. A few days after the dismissal of their appeals, Mr. Dona and Mr. Schul were sent to the Disciplinary Barracks (Depot voor Discipline) at Nieuwersluis in order to serve their punishment. They were not allowed to leave this establishment during the first month; moreover, they were both locked up in a cell during the night.
51. Apart from the particular facts relating to Mr. Dona and Mr. Schul, there was in the background a pattern of conflict between the Government and the V.V.D.M. In mid-August 1971, for instance, there had occurred the demonstration at Ermelo mentioned above at paragraph 43. The applicants also cite the fact that prior to their punishment, and in particular between 1 January and 20 October 1971, the Minister of Defence had decreed a great number of prohibitions on publications by the V.V.D.M. Furthermore, other servicemen, as editors of sectional journals of the Association, had been punished in criminal or in disciplinary proceedings - by aggravated arrest, fines and, in one case, military detention (Article 6 para. 3 of the Military Penal Code) - for writing or distributing publications considered as likely to undermine military discipline within the meaning of Article 147 of the Military Penal Code.
Since a ministerial instruction, dated 19 November 1971, and thus subsequent to the measures presently complained of, all cases involving a possible infringement of Article 147 of the Military Penal Code have had to be submitted to the military criminal courts (paragraph 14 above) and not to the disciplinary authorities. The "Distribution of Writings Decree" of 21 December 1967, mentioned above at paragraph 43, was repealed on 26 November 1971.
VIOLATED_ARTICLES: 5
6
VIOLATED_PARAGRAPHS: 5-1
6-1
NON_VIOLATED_ARTICLES: 14
6
NON_VIOLATED_PARAGRAPHS: 6-2
6-3
NON_VIOLATED_BULLETPOINTS: 6-3-b
6-3-c
6-3-d


ITEMID: 001-22083
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: SCISLOSKI v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is a Polish citizen, living in Ciębłowice Duże, Poland.
may be summarised as follows.
A.
On 21 November 1988 the Tomaszów Mazowiecki District Prosecutor conditionally discontinued criminal proceedings against the applicant instituted on suspicion of his having constructed a building on his farm contrary to the terms of a building permit he had received, considering that the applicant’s offence was of minor importance and that it was not justified to proceed further.
On 29 December 1988 the Tomaszów Mazowiecki municipality ordered the applicant to stay the construction works, to draw up an inventory of the works carried out to date and to request the municipality to give an administrative decision allowing for the works to be continued. The municipal authority considered that the applicant had failed to comply with the terms of the building permit in that he had changed the placement of the building on the plot, changed the dimensions of the building, had a basement constructed and had added windows and doors not provided for by the permit.
The applicant’s neighbour E.K. appealed against this decision.
On 21 January 1989 the municipal office inspected the construction site. On 21 March 1989 the Piotrków Trybunalski Regional Office set the decision of 29 December 1988 aside and ordered that the case be reconsidered. The administrative authority was of the view that the applicable legal provisions required that a building intended to serve for husbandry purposes should be located at least 15 metres from the nearest well. Following the changes effected by the applicant in relation to the building permit, the building was to be situated 9,5 metres from a well located on the adjacent plot of E.K. Moreover, the applicant had enlarged the building and it was planned that it would serve, inter alia, as a pigsty for 30 pigs, instead of 15 as foreseen by the permit. Thus, it was necessary to hold an administrative hearing in order to establish whether the nuisance which these changes could cause to his neighbours would be within the limits prescribed by the construction laws.
On 5 May 1989 the Tomaszów Mazowiecki municipality ordered the applicant to partially demolish the building, to bring it into conformity with the original building permit, and to ensure that the distance between the part of the building designed for husbandry and the well on the adjacent plot would be not less than 15 metres.
The applicant appealed. On 8 July 1989 the Tomaszów Mazowiecki Regional Office upheld the decision, considering that it was in conformity with the law.
On 26 September 1989, the Supreme Administrative Court refused to grant the applicant retrospective leave to appeal against this decision.
Apparently the proceedings were reopened later. On 5 March 1991 the Minister of Construction again ordered that the building be demolished. On 6 December 1991 the Supreme Administrative Court upheld this decision.
On 23 May 1990, 14 February 1994, 8 April 1994 and 17 January 1995, the Tomaszów Mazowiecki District Office imposed fines on the applicant, in order to compel him to demolish part of the building, in accordance with the decision of 5 May 1989. On 3 October 1994 the Tomaszów Mazowiecki Administrative Offences Board also imposed a fine on the applicant for the regulatory offence of failure to comply with an administrative decision.
On 20 January 1995 the Tomaszów Mazowiecki District Office issued an injunction, authorising an outside company to demolish the applicant's building, at the applicant’s expense.
The applicant lodged a complaint concerning the enforcement decision with the Regional Office in Piotrków Trybunalski. On 20 February 1995 the decision under appeal was upheld by the Piotrków Trybunalski Regional Office, which first took into consideration the applicant’s failure to comply with the demolition order of 1989. The authority further considered that in view of the fact that the administrative enforcement proceedings had been pending for a long time and that the applicant had not taken any steps to regularise his situation, the administrative authority was justified in ordering the demolition by an authorised company, as provided by the Law on Administrative Enforcement of 1966.
The applicant lodged an appeal with the Supreme Administrative Court. On 8 August 1995 the Court refused to entertain the applicant's appeal, considering that under Article 196 § 1 of the Code of Administrative Procedure no appeal to the court lay against an injunction ordering an enforcement of a non-pecuniary administrative obligation, which the party to the proceedings refused to carry out.
B. Relevant domestic law
1. Judicial review of administrative decisions
Article 196 § 1 of the Code of Administrative Procedure, as applicable at the relevant time, provided that an appeal could be lodged with the Supreme Administrative Court against a second-instance administrative decision on the merits on the ground that the decision was not in conformity with the law.
Article 207 § 2 states that the Court could set the decision aside wholly or in part if it established that the decision was issued in breach of substantive law, that the proceedings leading to the decision were flawed with a deficiency which led to the decision being null and void, or if such procedural shortcomings had occurred in the proceedings leading to the decision which would justify their reopening.
2. Enforcement of administrative decisions
Chapter III of the Administrative Enforcement Act of 1966 (hereafter “the Act”) sets out the principles of administrative enforcement concerning non-pecuniary obligations. Provisions relating to enforcement by way of imposing fines are contained in Part 2, whereas those concerning injunctions to carry out the obligations on behalf and at the expense of the parties to the proceedings are contained in Part 3.
Article 119 § 1 of the Act provides that a fine can be imposed in order to compel a person to comply with an obligation to bear or to desist from certain acts, or to carry out certain acts, particularly acts which, due to their nature, cannot be carried out by other persons. Such fines can be imposed repeatedly.
Pursuant to Article 127 of the Act, an injunction to carry out an administrative obligation can be issued when the administrative enforcement proceedings are being conducted in respect of a non-pecuniary obligation which can be carried out on behalf of the party and at its expense.
The person against whom administrative enforcement proceedings are being conducted is entitled to lodge a complaint against the decisions given in such proceedings with the organ conducting the proceedings.
3. Relevant provisions of the Law on Construction
Article 48 of the Law on Construction of 1974 (repeated in the same form in the Law on Construction of 1994, which entered into force on 10 January 1995) provided, insofar as relevant:
“The competent organ shall … order that a building, or part of a building, be demolished if it is under construction or has been constructed without an appropriate permit or notification thereof, or in breach of the terms of the permit…”


ITEMID: 001-100881
LANGUAGEISOCODE: ENG
RESPONDENT: SRB
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF RAKIC AND OTHERS v. SERBIA
IMPORTANCE: 3
CONCLUSION: Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 6-1;Non-pecuniary damage - award
JUDGES: András Sajó;Françoise Tulkens;Guido Raimondi;Kristina Pardalos;Nona Tsotsoria
TEXT: 5. The applicants, Mr Slobodan Rakić (“the first applicant”), Mr Živorad Ivković (“the second applicant”), Mr Damjan Šapić (“the third applicant”), Mr Dragan Jevtić (“the fourth applicant”), Mr Darko Glišović (“the fifth applicant”), Mr Radoš Mihajlović (“the sixth applicant”), Mr Ljubiša Janićijevic (“the seventh applicant”), Mr Nenad Jovanović (“the eight applicant”), Mr Milan Vitković (“the ninth applicant”), Mr Velibor Terentić (“the tenth applicant”), Mr Radojko Radosavljević (“the eleventh applicant”), Mr Dragoš Tomović (“the twelfth applicant”), Mr Predrag Todić (“the thirteenth applicant”), Mr Nebojša Milutinović (“the fourteenth applicant”), Mr Bojan Ilić (“the fifteenth applicant”), Mr Darko Trifunović (“the sixteenth applicant”), Mr Janko Janković (“the seventeenth applicant”), Mr Dragiša Zdravković (“the eighteenth applicant”), Mr Miljojko Đorđević (“the nineteenth applicant”), Mr Slavko Milošević (“the twentieth applicant”), Mr Miroslav Vučković (“the twenty-first applicant”), Mr Ljubinko Ćirković (“the twenty-second applicant”), Mr Veselin Božović (“the twenty-third applicant”), Mr Nebojša Đorđević (“the twenty-fourth applicant”), Mr Srećko Janićijević (“the twenty-fifth applicant”), Mr Siniša Milić (“the twenty-sixth applicant”), Mr Vladimir Avdalović (“the twenty-seventh applicant”), Mr Slavoljub Vukić (“the twenty-eighth applicant”), Mr Rodoljub Obradović (“the twenty-ninth applicant”) and Mr Dejan Pantić (“the thirtieth applicant”) are all Serbian nationals.
6. All applicants are employed as police officers with the Ministry of Internal Affairs of the Republic of Serbia (Ministarstvo unutrašnjih poslova Republike Srbije, hereinafter “the Ministry”). They reside and work in Kosovo.
7. The facts, as submitted by the parties, may be summarised as follows.
8. On 24 January 2000 and 17 July 2003, respectively, the Serbian Government adopted two decisions whereby, inter alia, all of its employees who resided and worked in Kosovo were to be paid double salaries.
9. On 31 January 2000 the Ministry issued a decision stating that the police officers in question were entitled to have their salaries increased based on a coefficient of 2.5 or 4.5, depending on the circumstances.
10. In reality, the applicants only received the increase approved by the Ministry, amounting to significantly less than the envisaged doubling of their salaries.
11. In 2006 and 2007, therefore, they filed separate civil claims against the Ministry with the First Municipal Court (Prvi opštinski sud) in Belgrade, seeking payment of the difference between the salary increase received and the one granted by the Government (the value of the seventh, thirteenth, seventeenth, twentieth, twenty-seventh and twenty-eighth applicants' claims, respectively, exceeded 500,000 dinars, whilst the claims of all other applicants were below this threshold). The applicants further requested payment of unspecified amounts on account of the related pension and disability insurance contributions.
12. Certain applicants were successful before the Municipal Court; others were not. However, all the applicants were unsuccessful at second instance before the District Court (Okružni sud) in Belgrade (hereinafter “the District Court”). The applicants received those decisions on the following dates:
- the first applicant on 26 April 2007;
- the second and third applicants on 7 May 2007;
- the fourth applicant on 26 June 2007;
- the fifth applicant on 3 September 2007;
- the sixth applicant on 19 September 2007;
- the seventh applicant on 1 October 2007;
- the eighth applicant on 26 September 2007;
- the ninth, tenth and eleventh applicants on 8 October 2007;
- the twelfth applicant on 16 October 2007;
- the thirteenth and fourteenth applicants on 29 October 2007;
- the fifteenth applicant on 19 October 2007;
- the sixteenth, nineteenth and twenty-first applicants on 11 December 2007;
- the seventeenth applicant on 26 November 2007;
- the eighteenth applicant on 17 December 2007;
- the twentieth applicant on 13 December 2007;
- the twenty-second applicant on 15 January 2008;
- the twenty-third applicant on 25 January 2008;
- the twenty-fourth and twenty-eighth applicants on 11 February 2008;
- the twenty-fifth applicant on 28 February 2008;
- the twenty-sixth applicant on 27 December 2007;
- the twenty-seventh and thirtieth applicants on 20 February 2008;
- the twenty-ninth applicant on 18 February 2008.
Many of the applicant's colleagues (hereinafter “the plaintiffs”) had brought separate claims concerning the same issue; some were successful whilst others were unsuccessful in the District Court.
13. In its reasoning in the applicants' cases, the District Court held, inter alia, that the applicable domestic regulation was contained in the decision of the Ministry adopted on 31 January 2000.
14. However, in seventy-three other judgments, rendered between 25 January 2006 and 1 October 2008, the same District Court ruled in favour of the plaintiffs, notwithstanding the fact that their claims were based on the same facts and concerned identical legal issues. In its reasoning in these other cases, the District Court held, inter alia, that the plaintiffs' salaries had to be paid in accordance with the Serbian Government's decisions of 24 January 2000 and/or 17 July 2003.
15. Of the seventy-three judgments mentioned above, in fifty cases the respondent lodged appeals on points of law (revizije) with the Supreme Court (Vrhovni sud Srbije, see paragraphs 24 and 27 below). In the remaining twenty-three cases, however, the respondent lodged no such appeal, apparently in the light of the statutory threshold (see paragraph 25 below).
16. The Government provided relevant case-law adopted by the Supreme Court, in particular six separate judgments of which one was issued on 3 July 2008 and the remaining five between 25 December 2008 and 1 October 2009. In each case, deciding upon appeals on points of law, the Supreme Court ruled against the plaintiffs, albeit with somewhat different reasoning compared to that employed by the District Court. In particular, the Supreme Court held, inter alia, that the Government's decision of 17 July 2003 had not been directly applicable.
17. In the meantime, on 23 September 2008, the Civil Division (Građansko odeljenje) of the Supreme Court held a meeting which was meant to resolve the issue of how to rule in all cases such as the applicants' (see paragraph 29 below). In the minutes of this meeting, it was noted inter alia that in two cases registered in 2008, where appeals on points of law had been considered, the Supreme Court had in fact confirmed the lower courts' rulings rendered in favour of the plaintiffs (Rev II 429/08 and Rev 623/08). The meeting, however, was ultimately adjourned pending the outcome of a case which had been brought before the Constitutional Court (Ustavni sud Srbije) concerning the abstract review of the constitutionality of the Government's decision adopted on 17 July 2003. On 16 April 2010 the Constitutional Court held that the impugned decision was unconstitutional.
18. In eighteen separate cases the plaintiffs thereafter lodged their appeals with the Constitutional Court (ustavne žalbe), but, according to the information contained in the case file, these proceedings are all still pending.
19. None of the applicants lodged an appeal on points of law or attempted to obtain constitutional redress.
20. The relevant provisions in this respect are set out in the Vinčić and Others v. Serbia judgment (nos. 44698/06, 44700/06, 44722/06, 44725/06, 49388/06, 50034/06, 694/07, 757/07, 758/07, 3326/07, 3330/07, 5062/07, 8130/07, 9143/07, 9262/07, 9986/07, 11197/07, 11711/07, 13995/07, 14022/07, 20378/07, 20379/07, 20380/07, 20515/07, 23971/07, 50608/07, 50617/07, 4022/08, 4021/08, 29758/07 and 45249/07, §§ 22-34, 1 December 2009).
21. Article 2 § 1 provides, inter alia, that all parties shall be entitled to the equal protection of their rights.
22. Articles 355-384 provide details as regards an appeal which may be filed against a judgment rendered at first instance (žalba). Article 355 § 1, in particular, provides that such an appeal must be filed within a period of fifteen days.
23. Article 438, however, provides that an appeal (žalba) in a labour dispute must be filed within a period of eight days.
24. Articles 394 § 1, 396 and 398 provide that parties may file an appeal on points of law (revizija) with the Supreme Court. They may do so within a period of 30 days following receipt of a final decision rendered at second instance, and only if the relevant legislation, procedural or substantive, has been breached by the lower courts.
25. Article 394 § 2 provides, inter alia, that an appeal on points of law is “not admissible” in pecuniary disputes (kad se tužbeni zahtev odnosi na potraživanje u novcu) where the “value of the part of the final judgment being contested” does “not exceed 500,000 dinars”.
26. Article 439 provides that an appeal on points of law shall be admissible in labour cases which concern one's hiring or dismissal or the “existence” of one's employment (u parnicama o sporovima o zasnivanju, postojanju i prestanku radnog odnosa)
27. In accordance with Articles 396 and 406-409, inter alia, the Supreme Court shall, should it accept an appeal on points of law lodged by one of the parties concerned, have the power to overturn and/or amend the impugned judgment or quash it and order a re-trial before the lower courts.
28. Article 422.10 provides that a case may be re-opened if the European Court of Human Rights has in the meantime rendered a judgment in respect of Serbia concerning the same or a similar legal issue.
29. Article 40 §§ 2 and 3 provides, inter alia, that a meeting of a division (sednica odeljenja) of the Supreme Court shall be held if there is an issue as regards the consistency of its case-law. Any opinions (pravna shvatanja) adopted thereupon shall be binding for all panels (veća) of the division in question.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-57880
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 1994
DOCNAME: CASE OF KARLHEINZ SCHMIDT v. GERMANY
IMPORTANCE: 2
CONCLUSION: Violation of Art. 14+4-3-d;Not necessary to examine P1-1;Costs and expenses award - domestic proceedings
JUDGES: John Freeland
TEXT: 6. Mr Karlheinz Schmidt, a German national who was born in 1939, lives at Tettnang, in the Land of Baden-Württemberg.
On 30 April 1982 the relevant municipal authorities required him to pay a fire service levy (Feuerwehrabgabe) of 75 German marks (DM) for 1982. This decision was based on section 43 of the Land Fire Brigades Act, as amended on 27 November 1978 (Feuerwehrgesetz, see paragraph 14 below -"the 1978 Act") and on the municipal decree (Satzung) of 5 December 1979; it stated that all male adults residing in Tettnang at the beginning of the budget year (1 January) were liable to pay the contribution in question.
7. The applicant regarded this decision as contrary, inter alia, to the constitutional principle of equality before the law (Article 3 of the Basic Law - Grundgesetz) and he appealed against it. The administrative authority (Landratsamt) of the district of Lake Constance (Bodenseekreis) rejected this appeal on 20 July.
8. On 16 August 1982 the applicant appealed to the Sigmaringen Administrative Court (Verwaltungsgericht), which dismissed his appeal on 18 August 1983. Referring to the case-law of the Federal Constitutional Court (Bundesverfassungsgericht) and to that of the Administrative Appeals Court (Verwaltungsgerichtshof) of the Land, it ruled that the obligation for men, and not women, to serve in the fire brigade or to make a financial contribution was compatible with the Constitution.
9. The Administrative Appeals Court dismissed the appeal which Mr Schmidt had filed against the decision of the Administrative Court; it refused him leave to appeal on points of law.
It pointed out that like the Constitutional Court it had always held the legislation requiring only the male residents of a municipality to pay a fire service levy to be consistent with the Constitution. The applicant’s arguments could not persuade it to reconsider its case-law or to refer the question to the Constitutional Court again. There were no new facts to present to the Constitutional Court and there had not been a fundamental change in legal opinion on the subject. The Administrative Appeals Court stated that it endorsed the opinion expressed in the Constitutional Court’s judgment of 5 July 1983 to the effect that, in view of the risks inherent in service in the fire brigade, there remained objective reasons for imposing the obligation on men but not on women.
10. The applicant challenged this judgment, which had been delivered on 25 March 1986, in so far as it had refused him leave to appeal on points of law, but the Federal Administrative Court (Bundesverwaltungsgericht) dismissed his appeal on 6 October 1986.
In its view, the case raised no issue of principle (grundlegende Bedeutung). On the question whether the imposition of a fire service levy was in breach of the Constitution, it concluded that it was not, in conformity with a judgment of the Constitutional Court of 17 October 1961. It would only be possible to refer the matter once again to the Constitutional Court if there were new facts or a fundamental change in legal opinion. However, the Land Administrative Appeals Court had found no evidence of this.
11. On 11 November 1986 Mr Schmidt applied finally to the Federal Constitutional Court, which on 31 January 1987, sitting as a panel of three members, declined to accept the appeal for adjudication, on the ground that it did not have sufficient prospects of success. It noted, inter alia:
"...
The Federal Constitutional Court has already held, in its judgment of 17 October 1961 ..., concerning the provision which corresponds to the present section 43 para. 2, first sentence, of the Baden-Württemberg Fire Brigades Act, that there had been no violation of the principle of equal treatment. In subsequent decisions delivered ... on 6 December 1978 (1 BvR 722/77), 13 November 1979 (1 BvR 768/79), 5 July 1983 (1 BvR 210/83), 19 November 1985 (1 BvR 609/85) and 11 December 1985 (1 BvR 1277/85), it stated that from the point of view of Article 3 para. 2 of the Basic Law [enshrining the principle of sexual equality] there had still been no general change in legal opinion; the fact that the obligation to serve in the fire brigade was limited to the male residents of a municipality still continued to be objectively justified on account of the risks inherent in service in the fire brigade, even though some fire brigade duties were performed by women and recently fire brigades for female volunteers had even been set up.
Nor does the fact that the Länder of Lower Saxony (section 14 para. 3 of the Lower Saxony Fire Protection Act) and the Rhineland-Palatinate (section 10 para. 2 of the Rhineland- Palatinate Fire Protection Act) make provision for an obligation to serve in the fire brigades regardless of sex constitute a reason for departing from this case-law. The sole decisive factor is that there remain today objective reasons (Anknüpfungspunkte) on the basis of which the legislature is entitled to treat men and women differently in this regard. That does not mean that there is an obligation to enact regulations differentiating between the sexes.
..."
12. The Baden-Württemberg Fire Brigades Act dates from 1 April 1956; it has been amended on several occasions, most recently on 10 February 1987. At the time of the events in the present case the Act was applicable as amended on 27 November 1978.
13. The Act requires municipalities to set up proficient fire brigades which may be composed of volunteers or professionals (sections 4 para. 1 and 8 para. 1). Their role is to deal with, among other things, fires, natural disasters and collapsed buildings, but they may also be required to ensure safety in theatres, at meetings and exhibitions and also at markets (section 2 paras. 1 and 2). All the male residents of the municipality between the ages of 18 and 50 inclusive may be required to serve as firemen, unless they can show that they are unfit to do so on health grounds (section 13 para. 1). If there are insufficient volunteers, the municipalities may call upon these residents to serve (section 13 para. 2), but so far this has never occurred in Baden-Württemberg.
As the Act does not recognise a right to active service, the municipalities may refuse to accept a volunteer (section 12 para. 3).
14. The municipalities may adopt decrees making provision for a fire service levy of up to 200 DM; the resulting funds may only be used to meet the needs of the fire brigade (section 43 paras. 1 and 4).
Anyone who is liable for fire service duty (section 13) and who resides in the municipality at the beginning of the budget year, may be required to pay this levy (section 43 para. 2). Certain persons are, however, exempted, such as the members of the municipal fire brigade (section 43 para. 3).
15. The system operated in Baden-Württemberg was challenged upon the entry into force of the Act on 1 April 1956. On 17 October 1961 the Federal Constitutional Court ruled that the fire service levy was compatible with the Basic Law and in particular with the general principle of equality before the law in so far as it constituted a "compensatory charge" (Ausgleichsabgabe) deriving directly from the obligation to serve.
16. In thirteen of the sixteen Länder of the Federal Republic of Germany - including Baden-Württemberg -, the residents of municipalities are required by law to perform active service in the fire brigade if there are insufficient volunteers. Nine Länder make provision for such service solely for male residents. In addition to Baden-Württemberg, residents are required to pay a contribution to the fire brigade or to the fire protection department in Bavaria, Saxony and Thüringen. Where service is compulsory for residents of both sexes, both men and women are liable to pay the contribution.
17. Moreover, according to information provided by the applicant and not contested, 68,612 women had served in fire brigades in Germany as at 31 December 1991 and in Baden-Württemberg women have been permitted to serve in fire brigades since 1978.
VIOLATED_ARTICLES: 14
4
VIOLATED_PARAGRAPHS: 4-3
VIOLATED_BULLETPOINTS: 4-3-d


ITEMID: 001-100182
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF STRELTSOV AND OTHER "NOVOCHERKASSK MILITARY PENSIONERS" CASES v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Violations of Art. 6-1;Violations of P1-1;Remainder inadmissible;Pecuniary damage and non-pecuniary damage - award
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
TEXT: 7. The eighty-seven applicants were born on the dates listed in Annex I and live in Novocherkassk, the Rostov Region.
8. , may be summarised as follows.
9. The applicants, retired military officers, sued the military commissariats of Novocherkassk and the Rostov Region for recalculation of their pensions. One group of the applicants sought adjustment of the pension to the minimum wage and claimed arrears for 1995-1998 in line with the increase in the latter. Another group of the applicants claimed recalculation of their pensions on account of the increase of the monetary compensation paid in respect of the food allowance. Several applicants raised both types of claims before the domestic courts.
10. On the dates listed in Annex I the domestic courts found in the applicants' favour. As regards the case no. 25442/06 by Mr Pavlov, the judgment of 22 September 2004 was issued by the Justice of the Peace of the 6th Circuit of Novocherkassk. The judgment of 30 August 2004 in favour of Mr Pavlov, as well as all the judgments in favour of the remaining eighty-six applicants, were issued by the Novocherkassk Town Court of the Rostov Region.
11. The court ordered in respect of the first type of the claims that the pensions be adjusted to the minimum wage and that the arrears be paid to the applicants. As concerns the second type of the claims, the court held that the pensions should be increased in line with the increase of the daily food allowance and awarded the applicants the respective lump sums in arrears. The awards were made against the Military Commissariat of the Rostov Region, while the respective claims against the commissariat of Novocherkassk had been dismissed.
12. The representatives of the Military Commissariat of the Rostov Region were present at the court room on 30 August and 15 September 2004.
13. In several cases the respondent authority introduced the grounds of appeal with the Town Court. However, on various dates in 2004 the respondent authority revoked their applications. For example, in case of Mr Turutin (no. 18952/06) the grounds for appeal were revoked on 10 November 2004. As a result, none of the judgments was appealed against. They entered into force ten days later.
14. The applicants took various steps to obtain execution of the judgment. In particular, the Government submitted that in September-October 2004 Mr Sobolev, Mr Sedlyar and 31 other applicants sent the writs of execution to the respondent authority. It follows from the incoming correspondence log of the Rostov Regional Military Commissariat that the latter received the writs.
15. In 2005 the military prosecutor's office started an inquiry into lawfulness of proceedings concerning military pension arrears throughout the Rostov Region and detected several instances of fraud. In particular, they found out that the respondent commissariat on several occasions had made payments against forged writs of execution issued in the similar but unrelated proceedings. On various dates the enforcement proceedings in the cases at hand were suspended pending the region wide inquiry, because the prosecutor's office had to establish authenticity of the writs of execution issued in the applicants' cases. It appears that the investigation did not reveal any evidence of fraud in the present cases.
16. According to the Government, in September 2005 judge A. who had issued the judgments in question was dismissed by the decision of the Judicial Qualification Board of the Rostov Region. At some point several high officials of the Military Commissariat of the Rostov Region had been charged with and convicted of embezzlement.
17. As regards the group of nineteen applicants named in Part A of Annex I, the domestic awards in their favour were fully executed by the respondent authorities on the dates specified in the table. As concerns the remaining applicants whose names are listed in Part B of Annex I, at least one judgment in their favour has remained unenforced.
18. On various dates in 2005-2007 the respondent commissariat applied for the supervisory review of the judgments.
19. According to the Government's observations, thirty-three requests for review were lodged outside the one-year time-limit from the date of the judgment's entry into force. In such cases, the respondent authority also applied for extension of the time-limit for application for supervisory review arguing that it had not received copies of the respective first instance judgments in time and had only been informed of the judgments in October 2005, when the prosecutor's inquiry had been opened. On various dates the Novocherkassk Town Court allowed these applications. In particular, in case of Mr Turutin (no. 18952/06) the Novocherkassk Town Court on 20 December 2006 accepted the authority's argument that they had been unaware of the judgment, having found, in particular, as follows:
“There is no evidence in the case materials to the effect that a copy of the judgment of 30 August 2004 ... had been sent to the Military Commissariat of the Rostov Region. It follows from the above that the [respondent commissariat] had a real opportunity to avail itself of its right to apply for supervisory review within one year.”
20. The Town Court made similar findings in respect of thirty-two remaining cases.
21. Enforcement of the unexecuted domestic judgments had been suspended pending the supervisory review.
22. On various dates in 2005-2007 the Rostov Regional Court allowed the applications for supervisory review of the judgments lodged by the military commissariat of the Rostov Region and remitted the matter for examination on the merits to the Presidium of the Rostov Regional Court.
23. On the dates specified in Annex I the Presidium of the Rostov Regional Court quashed the judgments in the applicants' favour and remitted the cases for a fresh consideration. In each case the Presidium concluded that the first-instance court had erroneously applied the substantive law. They also found that the Novocherkassk Town Court had lacked territorial jurisdiction to examine the cases. The arrears were awarded against the Military Commissariat of the Rostov Region and thus the cases should have been examined by a court in the Oktiabrskiy District of Rostov-on-Don where the respondent commissariat was located.
24. The cases were considered afresh by the Oktyabrskiy District Court of Rostov-on-Don.
25. According to the Government, Mr Karatayev (application no. 18352/06) modified the scope of his claim in the new round of the proceedings concerning the adjustment of his pension to the increase of the minimum wage. On 6 August 2007 The Oktyabrskiy District Court granted his action in full and ordered that he be paid 32,811.52 Russsian roubles (RUB). The judgment was executed. The parties did not submit copies of the respective statement of claims and judicial decision.
26. As regards the remaining applicants, the court either discontinued the proceedings or dismissed the applicants' claims. The particulars of the respective proceedings are summarised in Annex I below.
27. Under Article 376 of the Code of the Civil Procedure of the Russian Federation of 14 November 2002 (in force from 1 February 2003), judicial decisions that have become legally binding, with the exception of judicial decisions by the Presidium of the Supreme Court of the Russian Federation, may be appealed against to a court exercising supervisory review, by parties to the case and by other persons whose rights or legal interests have been adversely affected by the judicial decisions concerned (§ 1). Judicial decisions may be appealed against to a court exercising supervisory review within one year after they became legally binding (§ 2). By its ruling of 5 February 2007, the Constitutional Court interpreted Article 376 § 1 as allowing the above-mentioned persons to apply for supervisory review only after having exhausted all available ordinary appeals
28. For the summary of other applicable provisions of the domestic law, see Murtazin v. Russia, no. 26338/06, §§ 14-18, 27 March 2008.
29. Article 28 of the Code of Civil Procedure provides that a civil claim is to be filed with the court with territorial jurisdiction over the defendant's place of residence. A claim against the organisation is to be filed with the court having territorial jurisdiction over the organisation's residence. According to Article 31 § 1 of the Code, where a claim is filed against several defendants having different places of residence, a claim is to be lodged with a court having territorial jurisdiction over one of the defendants, upon the claimant's choice.
30. Succession is regulated by Part 3 of the Civil Code. The succession includes the deceased's property or pecuniary rights or claims but does not include rights or obligations intrinsically linked to the deceased's person, such as alimony or a right to compensation for health damage (Article 1112). An heir should claim and accept succession, as well as obtain a succession certificate from a public notary (Articles 1152, 1162). The right to receive the amounts of salary and payments qualifying as such, pension and other amounts of money provided to the deceased person as means of subsistence which had been payable but had not been received in his lifetime shall belong to the members of the deceased's family who had been residing together with him and also his disabled dependants, irrespective of their having resided with the deceased or not (Article 1183 § 1). In accordance with section 63 of the Federal Law on Pension Welfare of Military Service Personnel (1993), as in force at the material time, the amount of pension due to a pensioner but not received in his lifetime shall belong to the members of the deceased's family if they were in charge of his or her funeral, and shall not be included in the succession.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-86520
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: CAMERON v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicant, Mr Craig Cameron, is a British national who was born in 1964 and lives in Stamford. The United Kingdom Government (“the Government”) were represented by their Agent, Mr D. Walton of the Foreign and Commonwealth Office, London.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant received a notice of intended prosecution requiring him to name the driver of his car on 31 March 2003. The applicant declined to sign the form, maintaining that the car belonged to his employer.
On 4 December 2003, the Magistrates’ Court convicted the applicant of an offence under section 172(3) of the Road Traffic Act 1988 for failing to give information as to the identity of the driver of his car. He was fined GBP 400 and ordered to pay GBP 160 costs, with his licence to be endorsed with three penalty points.
The applicant appealed to the Crown Court, invoking Articles 6 and 10 of the Convention. It rejected his appeal after a hearing on 24 November 2004.
The relevant domestic law and practice are set out in O’Halloran and Francis v. the United Kingdom [GC], nos. 15809/02 and 25624/02, §§ 2531, ECHR 2007...


ITEMID: 001-110881
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF FRĂSILĂ AND CIOCÎRLAN v. ROMANIA [Extracts]
IMPORTANCE: 2
CONCLUSION: Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Pecuniary and non-pecuniary damage - award
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Mihai Poalelungi
TEXT: 6. The first applicant was born in 1957 and lives in Piatra-Neamţ (Romania); the second was born in 1972 and lives in Jakobstad (Finland). They are both journalists.
7. In 1995 the first applicant set up the limited corporation Tele M, whose registered purpose was the production and broadcasting of radio and television programmes. The first applicant was the majority shareholder and manager. The company obtained broadcasting licence no. 246/1997 and was granted television operation rights for the Neamţ region.
8. In 1999 the first applicant set up the private limited liability company Radio M Plus, whose main registered purpose was the production of audiovisual programmes. The first applicant was its sole shareholder and manager. A change in share capital in 2000 reduced his interest to 20%.
9. The first applicant’s intention was to separate the television activities from those of radio broadcasting, with Radio M Plus dealing solely with the latter. Pending the change in audiovisual legislation which would enable the assignment of the radio-broadcasting licence (amendment finally adopted on 8 August 2002), the relevant activities were divided between Radio M Plus, which produced the radio programmes, and Tele M, which was responsible for broadcasting. The equipment necessary for the radio activity (including broadcasting) belonged to the company Radio M Plus.
10. In January 2002 the television station Tele M broadcast two documentaries; one concerned a protégé of I.T. who was wanted by the police, and the other was about one of I.T.’s business ventures, namely a hotel where traces of mercury had been found in food. In the first applicant’s submission, after those two documentaries I.T. threatened to make his companies insolvent as a result of inspections by the financial authorities. According to the information provided by the first applicant, I.T. was at the time a member of parliament affiliated to the party in power, and was referred to in the press as a “local baron”.
11. On 25 January 2002 the local financial authorities of Piatra-Neamţ attempted to carry out an unannounced inspection at the head offices of Tele M. In view of the first applicant’s opposition, he was fined by the financial authorities. The fine was, however, subsequently annulled, because it had been imposed, according to the applicant, in breach of the statutory provisions which required giving 15 days’ notice to the company concerned before an inspection could be carried out. An inspection was subsequently carried out, however, and the authorities found that the company owed significant amounts to the State budget. An agreement for the staggered repayment of the sums due was entered into with the first applicant. In his submission, the inspection had followed a request made by I.T. to V.M., who was head of the local public finance directorate and who, at the time, was an associate of I.T. in a number of commercial companies.
12. The first applicant explained that, having regard to the high amount of the aggregate debt and the fact that it was repayable immediately, and in order to avoid insolvency, he had been persuaded to sell his majority interest in the company Tele M. to I.T. and to the company I., which belonged to the wife and son of V.M. He thus ceased to be a shareholder on 1 August 2002. On the same day the applicant was dismissed from his duties as manager of the company.
13. On the same day, the company Radio M Plus, of which the first applicant was still the manager, and the company Tele M, set up a partnership for the production and broadcasting of radio programmes. Under the partnership agreement, Tele M was to provide movable and immovable property, programmes, licences and contracts, whilst Radio M Plus was to provide specialised equipment, financial resources and programmes, and was to take charge of the management. In accordance with the technical broadcasting permit of 16 September 1998, issued by the Communications Ministry, the radio station Radio M Plus was to broadcast from its head office at 80, Stefan cel Mare, Piatra-Neamţ.
14. In a decision of 2 August 2002, the company Radio M Plus appointed the first applicant as manager of the partnership. The radio activities were located on the second floor of the building at 80, Stefan cel Mare, Piatra-Neamţ, which housed studios for production and for radio broadcasting, and one for guests.
15. The second applicant was the radio station’s editor and, from 1 October 2002, its programme director.
16. From 2 October 2002, following certain disagreements between the representatives of the two above-mentioned companies, the applicants were denied access to the radio station’s newsroom by representatives of Tele M.
17. On 16 October 2002 the applicants brought urgent proceedings seeking a right of access to the radio station’s newsroom.
18. In a decision of 6 December 2002 the Neamţ County Court upheld the applicants’ claim and ordered Tele M to give them access to the newsroom of Radio M Plus, at 80, Stefan cel Mare, Piatra-Neamţ. This decision was upheld at last instance by the Bacău Court of Appeal, on 11 March 2003. The courts noted, in particular, that the head offices of Radio M Plus and Tele M were located in the same building and that the companies were therefore entitled to make use of it for their activities. They concluded that the barring of the applicants from the radio’s newsroom by Tele M. constituted an unlawful action that was likely to cause prejudice to the activities of the radio station, in which the applicants held the posts of manager and editor, respectively.
19. On 7 January 2003, on the applicants’ request, the Piatra-Neamţ Court of First Instance ordered the enforcement of the Neamţ County Court’s decision of 6 December 2002.
20. On 14 January 2003 a bailiff accompanied the applicants to the radio station’s head office. The representative of the company Tele M denied the applicants access to the second floor of the building, explaining that the newsroom had been transferred to the ground-floor of the building, to a room where they were received. Only the bailiff was able to visit the rooms on the second floor where the special equipment was located.
21. On 18 March 2003 the applicants reiterated their request for the enforcement of the final decision of 6 December 2002, as in the meantime an appeal by the defendant against that decision had been dismissed.
22. A fresh attempt at enforcement took place on 12 May 2003, but was unsuccessful. On that occasion, the bailiff noted that the decision to be enforced was clear and that it was not necessary to initiate court proceedings in order to clarify the meaning and scope of its operative provisions.
23. On 24 January 2003, on account of their inability to exercise their profession as journalists, following the refusal by Tele M to allow them access to the radio’s newsroom, the applicants filed a criminal complaint with the public prosecutor for opposition to the enforcement of a final decision. On 8 July 2003 the public prosecutor at the Piatra-Neamţ Court of First Instance gave a decision discontinuing the proceedings, finding that the dispute actually concerned the implementation of the partnership agreement signed on 1 August 2002. On 30 January 2004 the Principal Public Prosecutor confirmed the discontinuance.
24. On 23 February 2004 the applicants lodged an urgent application requesting the courts to order Tele M to comply with the partnership agreement of 1 August 2002 and, for that purpose, to hand over to them any radio production and broadcasting equipment that was necessary for the implementation of that agreement. They further sought an order that the company be fined 2 million Romanian lei (ROL) per day of non-compliance.
25. In a final decision of 12 October 2004 the Sibiu County Court dismissed the application, finding that it concerned the merits of the question of the performance of the agreement rather than a temporary or urgent situation justifying an immediate injunction.
26. On 25 October 2004 the company Tele M returned to the company Radio M Plus the equipment of which the latter was the owner.
27. On 25 March 2005 the first applicant filed a criminal complaint with the Piatra-Neamţ Court of First Instance against the shareholders and managers of Tele M for refusing to allow him access to the newsroom and to the equipment necessary for radio programmes, thus preventing him from exercising his profession as journalist. On 27 June 2007 the first applicant was informed that his criminal complaint had been referred to the public prosecutor at the Piatra-Neamţ Court of First Instance, which had opened criminal proceedings against three managers of the company Tele M for embezzlement. He was not kept informed of subsequent developments in the proceedings.
28. The Court has not been informed whether the applicants have brought civil-law proceedings for the performance of the partnership agreement of 1 August 2002 between the companies Radio M Plus and Tele M.
29. In their written observations of 9 June 2008 the Government informed the Court as follows:
“According to the information notified by the bailiff N.T., he was unable to pursue the enforcement procedure, in view of the subject-matter of the claim – enforcement of an obligation ‘to perform’ – and the legal nature of the premises, and, moreover, having regard to the fact that the writ of execution did not precisely stipulate the location of the newsroom of Radio M Plus SRL or describe its composition. In those conditions, the bailiff stated that he was not competent to go beyond the above-mentioned legal framework.”
30. On 30 January 2003 the National Audiovisual Council (the “NAC”) ordered the company Tele M to terminate the assignment of audiovisual licence no. 246/1997 as provided for under the partnership agreement of 1 August 2002 and to ensure that its situation became lawful within thirty days, in view of the fact that the said agreement was in breach of the new Audiovisual Act (law no. 504/2002), which prohibited the exploitation of an audiovisual licence by anyone other than its legal beneficiary. There is no evidence in the file to show whether the order was followed by a decision by the NAC to withdraw the licence in accordance with the above-mentioned law.
31. However, on 9 June 2003, the company Tele M once again assigned the rights to audiovisual licence no. 246/1997 to a third company. In a decision of 14 November 2003 that company obtained a broadcasting permit, for the purpose of which it was to use a transmitter belonging to the company Radio M Plus. Nevertheless, it can be seen from the case file that, in a decision of 20 November 2003, the NAC temporarily suspended the licence assignment until the finalising of the dispute that had in the meantime arisen between the two companies. It was only on 9 November 2004 that the third company secured the right to use a new transmitter.
32. According to an NAC certificate of 4 June 2008, issued at the request of the Romanian Government’s Agent, the company Radio M Plus held audiovisual licence no. 524, dated 17 May 2004, for the city of Târgu-Neamţ in respect of the radio station of the same name, and a broadcasting licence of 5 May 2005 issued by the National Regulatory Authority for Communications. The company also held two audiovisual licences obtained in 2004 for two television stations, which were authorised to broadcast in the cities of Piatra-Neamţ and Roman, respectively. Audiovisual licence no. 246/1997 issued for the radio station Radio M Plus belonged to the company Tele M Invest. The NAC concluded that the radio station Radio M Plus had not carried on any radio broadcasting activity in 2002-2004.
33. In October 2002 the second applicant published an article in the national newspaper România liberă about the various businesses run by I.T.
34. From November 2003 onwards the first applicant became the director of the regional weekly newspaper Lumea Nemţeanului. The second applicant was appointed as its editor-in-chief. According to the information provided by the applicants, the weekly had to close after five issues because of pressure exerted on the companies that distributed the newspaper and those with which it had signed advertising agreements.
35. The Audiovisual Act (Law no. 504) was enacted on 11 July 2002 and entered into force on 22 July 2002. This law set up the National Audiovisual Council, an autonomous public authority in the public interest, under parliamentary supervision, with the responsibility, under section 17(c) of that law, for granting audiovisual licences. Under section 57(b), the Council withdraws an audiovisual licence if its holder stops broadcasting programmes for 45 days, for technical reasons, and for 96 hours, for any other reason. Under section 59(1) of the law, in cases where the broadcasting of programmes requires the use of a terrestrial radio frequency, the audiovisual licence must be accompanied by a broadcasting permit issued by the National Regulatory Authority for Communications.
36. The relevant articles of the Code of Civil Procedure read as follows:
...
“In respect of enforcement proceedings or any act of enforcement, any person who has an interest therein or is aggrieved as a result thereof is entitled to lodge an objection. Similarly, ... an objection may be lodged when it is necessary to clarify the meaning, scope or terms of implementation of the writ of execution, or where the authority responsible for enforcement refuses to perform an act of enforcement as provided for by law.”
...
“Should the obligor refuse the enforcement of the obligation to act provided for in the writ of execution within ten days after receiving the order, the court, by a final interlocutory decision, after summoning the parties, may authorise the obligee to enforce the obligation himself or to have it enforced by third parties at the obligor’s expense.”
“Should the obligation ‘to act’ require the obligor’s personal intervention, he may be coerced into performing the obligation by means of a civil-law coercive. The court, on an application by the obligee, may order the obligor, in a final interlocutory decision, after summoning the parties, to pay the State a fine of between 200,000 and 500,000 Romanian lei for each day until the obligation provided for in the writ of execution has been performed.
The obligee may request the court to award him damages against the obligor in order to make good the loss incurred by the failure to perform the obligation ... Article 574 shall be applicable in such matters.”
...
39. A number of national and international non-governmental organisations, together with the European Commission, have drawn up reports on the freedom of the press in Romania in the period 2002 to 2004.
...
43. In its “2004 Regular Report on Romania’s progress towards accession” the European Commission added as follows:
“Despite this progress, certain structural problems may affect the practical realisation of the freedom of expression. Many media organisations are not economically viable and their continued existence can depend on the support of political or business interests. External studies have concluded that journalists’ reporting can often be influenced by financial inducements leading to self-censorship. Against this background, the state has tolerated the accumulation of significant arrears by a number of the largest media companies, including most major private TV stations. Such a situation may compromise editorial independence and media monitoring studies have observed that the TV news is notably less critical of the government than the written press. There are also credible reports of locally elected officials using public office to influence the editorial policy of local newspapers, radio and TV stations, e.g. through the selective award of public advertising contracts.”
VIOLATED_ARTICLES: 10
VIOLATED_PARAGRAPHS: 10-1


ITEMID: 001-102445
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF ANDRIY RUDENKO v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Violation of P1-1
JUDGES: Ganna Yudkivska;Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 4. The applicant was born in 1941 and lives in Kyiv.
5. On 30 July 2003 the applicant instituted proceedings in the Shevchenkivskyy District Court of Kyiv against his former wife and mother-in-law, Ms R. and Ms I., seeking division of their jointly owned property, a three-room flat. In particular, the applicant requested the court to rule that one room be separated from the flat and to grant him title to that room. He submitted that the defendants did not allow him to enter the flat and that he had been forced to reside elsewhere.
6. The defendants lodged a counterclaim, asking the court to grant them joint title to the applicant's part of the flat and to fix the amount of compensation they would have to pay the applicant. They argued that, due to personal conflicts with the applicant, they could not all live together in one flat.
7. On 28 May 2004 the court ruled in favour of the defendants. It found, relying on an expert's report, that it was not technically possible to separate a single room from the flat. Relying on Article 115 of the Civil Code of 1963, the court granted the defendants title to the entire flat and ordered them to pay the applicant 121,747.60 Ukrainian hryvnias (UAH) in compensation.
8. The applicant appealed, stating in particular that he had been deprived of his property against his will and in violation of the law, and that the defendants had failed to transfer the money to the deposit account of the court in order to prove their ability to pay the amount awarded to him in compensation.
9. On 14 September 2004 the Kyiv City Court of Appeal partially changed the judgment of the first-instance court. It ruled that the latter court had wrongly relied on Article 115 of the Civil Code of 1963, instead of Articles 364 and 365 of the Civil Code of 2003, which were applicable in the case. The Court of Appeal rejected the applicant's appeal, holding, inter alia, that the defendants' ability to pay the award had been confirmed by a bank statement, according to which the applicant's former wife had a balance of 23,000 United States dollars (USD) on her deposit account.
10. The applicant appealed in cassation, alleging that the lower courts had misinterpreted the law. According to him, the courts had failed to take into account the fact that he had not given his consent for compensation pursuant to Article 364 of the Civil Code of 2003 and that they had failed to ensure that the requirement laid down in paragraph 2 of Article 365 of the Civil Code of 2003 had been fulfilled by the defendants.
11. On 16 June 2005 a panel of three judges of the Supreme Court dismissed the applicant's appeal, finding no grounds on which to transfer the case for consideration by the chamber of the Supreme Court.
12. The applicant did not institute enforcement proceedings in order to recover the sum awarded to him by the courts. According to the applicant, he did not receive the compensation awarded in the judgment of 28 May 2004 because the debtors refused to pay it as they did not have sufficient funds.
13. By a judgment of 11 July 2006, the Shevchenkivskyy District Court ruled to discontinue the applicant's registration at the flat. On 23 August 2006 an appeal by the applicant against that judgment was rejected as lodged out of time. The applicant did not appeal in cassation.
14. Relevant extracts from the Constitution read as follows:
“Everyone has the right to own, use and dispose of his property ...
No one shall be unlawfully deprived of the right of property. The right of private property is inviolable.
The expropriation of objects of the right of private property may be applied only as an exception for reasons of public necessity, on the grounds and through the procedure established by law, and on the condition of advance and full compensation of their value. The expropriation with subsequent full compensation of their value is permitted only in the conditions of martial law or a state of emergency.
...”
15. The relevant provisions of the Civil Code of 2003 read as follows:
“1. An individual co-owner is entitled to the physical separation of a part of a jointly owned property with determined shares [of each co-owner].
2. If [such] a separation ... is not permitted by the law or is impossible (paragraph 2 of Article 183 of this Code), the individual co-owner ... is entitled to receive monetary or other pecuniary compensation for his part from the other co-owners.
Compensation may only be provided with his consent ...”
“1. The right to a part of a jointly owned property may cease to exist pursuant to a court decision [taken] further to a claim by other co-owners, if:
1) the part is minor and cannot be physically detached;
2) the object is indivisible;
3) joint possession and use of the property is impossible;
4) the cessation of the right will not cause substantial damage to the interests of the co-owner or members of his or her family.
2. The court shall take a decision terminating a person's title to a part of a joint property on the condition that the claimant makes an advance payment of the cost of that part to the court's deposit account.”
16. By decision of 23 May 2007, the Supreme Court quashed the judgment of the lower court in a dispute between private persons concerning division of their jointly owned flat and remitted the case for fresh consideration for the following reasons:
“...
The Court of Appeal terminating the right of [a party] to part of the flat did not comply with the condition set in paragraph 2 of Article 365 of the Civil Code which led to the incorrect determination [of the dispute].
[The opposing party] was not present at the hearing before the Appeal Court and that court did not check the conditions of payment of compensation...
Given the above breach of the law, the judgment of the Court of Appeal concerning the division of the flat shall be quashed ...”
17. The Supreme Court's decision of 17 February 2010, by which it quashed the lower courts' decisions in a dispute concerning division of the property jointly owned by private individuals, was inter alia based on the similar ground. In particular, the relevant parts of the Supreme Court's decision read as follows:
“...
By the decision of the Court of Appeal, [a party's] title to part of joint property was terminated, though in the case material there is no information concerning advance payment by [the opposing party] of the cost of that part into the court's deposit account.
In such circumstances the challenged court decisions do not comply with the requirements of lawfulness and reasonableness ... and must be quashed with the referral of the case for new consideration...”
18. In that decision the Supreme Court also noted that:
“...
The legal nature of the provisions [of Articles 364 and 365] of the Civil Code of Ukraine differs; each of the provisions is a separate ground for lodging a claim; the first provides for the right of a owner, who withdraws [from joint ownership], to a part of a joint property, whereas the second provides for the possibility of terminating the right of a person to a part of a joint property upon a claim of other co-owners.
In this context, monetary or other type of pecuniary compensation under Article 364 of the Civil Code of Ukraine may be paid to a co-owner, who withdraws [from joint ownership], only with his consent. Whereas, under Article 365 of the Civil Code of Ukraine no consent to obtain compensation ... by a person whose right to a part of a joint property is being terminated is necessary (the claimant is only required to pay the cost of the part of property, the right to which is being terminated, to the court's deposit account).
... [Articles 364 and 365 of the Civil Code] are mutually exclusive and cannot be applied at the same time ...”


ITEMID: 001-121630
LANGUAGEISOCODE: ENG
RESPONDENT: AZE
BRANCH: ADMISSIBILITY
DATE: 2013
DOCNAME: ABBASOV AND OTHERS v. AZERBAIJAN
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska
TEXT: 1. The applicants, Mr Rauf Abbasov, Mr Azer Abbasov, Mr Elshad Mammadov, Mr Zabil Najizade, Mr Etibar Agayev, Mr Ganimat Zayidov, Mr Mehman Aliyev and Mr Shahveled Namazov, are Azerbaijani nationals and live in Baku. They were represented before the Court by Mr R. Hajili, Mr E. Sadigov and Mr K. Agaliyev, lawyers practising in Azerbaijan. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Asgarov.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. The applicants who are all independent journalists or journalists who support the political opposition, decided to hold a demonstration in support of freedom of the media in Azerbaijan.
4. By a letter sent in early June 2007, the applicants informed the Baku City Executive Authority (“the BCEA”) of their intention to hold a demonstration in the form of a march from Dakar Square to a small square near the Heydar Aliyev Petroleum Refinery in Baku.
5. By a letter of 9 June 2007 the BCEA authorised the applicants to organise a march from the Hazi Aslanov Metro Station to Ukraine Square and then to assemble and continue demonstrating in Ukraine Square. The authorised time period for the demonstration was from 5 p.m. to 7 p.m. on 12 June 2007.
6. The applicants were not satisfied with the location proposed by the BCEA because it was too distant from the city centre and at the time there were road works underway around Ukraine Square, making it hard for them to hold a demonstration there.
7. For the above reasons, and without formally notifying the BCEA, the applicants changed the location of their demonstration to the Sabir Park in the city centre.
8. On 12 June 2007 a total of twenty-five to thirty journalists (including the applicants) holding banners with various slogans gathered at the Sabir Park and attempted to hold a demonstration. However, approximately five to ten minutes after the demonstration began, several police cars approached the park and about thirty police officers from the Sabail District Police Office began dispersing the demonstrators.
9. Four of the applicants, Mr Rauf Abbasov, Mr Zabil Najizade, Mr Ganimat Zayidov and Mr Shahveled Namazov, were forcibly dragged into police cars and taken to Police Station No. 9 of the Sabail District Police Office. They were held in the police station for more than two hours but were subsequently released.
10. On 12 July 2007 the applicants brought an action against the Sabail District Police Office claiming that they had been ill-treated by the police during the dispersal of the demonstration and that their rights of freedom of assembly and freedom of expression had been violated.
11. On 20 July 2007 the Sabail District Court refused to admit the applicants’ civil claim as they had failed to pay the court fees in the manner and amount required by law.
12. On 18 September 2007 the Baku Court of Appeal rejected an appeal by the applicants and upheld the first-instance court’s inadmissibility decision. The Baku Court of Appeal found that the applicants’ original claim had not complied with the procedural requirements of the Code of Civil Procedure concerning the form and content of civil claims, and that the applicants had failed to attach any documentary evidence in support of their claim, apart from photocopies of several photographs.
13. On 12 December 2007 the Supreme Court upheld the Baku Court of Appeal’s decision. The Supreme Court’s decision was sent to the applicants on 10 January 2008.
14. On 30 November 2010 the application was communicated to the respondent Government. On 15 July 2011 the Government submitted a friendly-settlement proposal within the framework of the proceedings before the Court, and on 21 July 2011 the Court sent the proposal to the applicants.
15. At the beginning of August 2011, several articles were published in the Azerbaijani media concerning the Government’s friendly-settlement proposal to the applicants. Some of the articles are described below.
16. On 2 August 2011 an article was published on the website of the Yeni Musavat newspaper. The article was accompanied by six photographs in which all of the applicants, except Mr Etibar Agayev and Mr Ganimat Zayidov, are present, together with other persons. The article was entitled “The Government Offer 40,000 Euros to Eight Journalists” (“Hakimiyyət 8 jurnalistə 40 min avro təklif edir”) and read, in its relevant part, as follows:
“...The current situation is that the Government are ready to pay the 40,000 euros in compensation that the journalists claim. The respondent party is trying to prevent the adoption of a new court judgment against Azerbaijan and the examination of the case before the European Court by proposing a friendly settlement to the journalists. Yesterday, the applicant journalists, except for E. Seyidaga [Agayev] and G. Zahid [Zayidov], met at the office of the Yeni Musavat newspaper and assessed the current situation. The common opinion of the participants in the discussion was that in comparison with the unlawfulness to which the journalists had been subjected the amount of the proposed compensation was low. Moreover, they concentrated on two options for reaching a final decision. The first option is a conditional agreement. Thus, in that case the applicants would accept the friendly-settlement proposal on the condition that they obtained the punishment of the court judges and police officers who had used violence against them. In that case, the Government would eradicate the causes which created this situation. The second option is for the above-mentioned case to continue before the European Court of Human Rights until the final stage.
The journalists also stated during the discussions that if there was a decision, it would be the first decision concerning Article 11 of the Convention in respect of Azerbaijan. This is important for democracy and free speech in Azerbaijan ...
Following this interesting discussion, the journalists decided to discuss the issue again in the coming days in the presence of the director of the Media Rights Institute, Rashid Hajili ...”
17. Another article dated 1 August 2011, the day before, was published on the website of Radio Liberty. The article, entitled “The Azerbaijani Government Propose Friendly Settlement to Eight Journalists” (“Azərbaycan hakimiyyəti 8 jurnalistə barışıq təklif edir”), was written by S. Akifgizi. It was stated in the article that Mr Shahveled Namazov, one of the applicants, had informed Radio Liberty that the Azerbaijani Government had proposed a friendly settlement to the eight journalists that included compensation of 40,000 euros. Mr Shahveled Namazov also stated that the journalists could not reach a consensus as some of them wanted to accept the Government’s proposal. He further continued as follows:
“The common opinion was that we cannot be satisfied solely with the compensation; our right of assembly has been violated. Some of us are in favour of pursuing a judgment by the European Court because such a judgment will become a precedent”.
18. In the same article, another applicant, Mr Rauf Abbasov, was also quoted. He stated that in their claim they had requested the punishment of the police officers who had used violence against them, as well as the punishment of the judges of the first-instance court who had dismissed their action. He continued as follows:
“However, these assurances were not secured in the proposal by the Azerbaijani Government; if they were secured, it would be possible to withdraw the application”.
19. On 2 August 2011 an interview with one of the three representatives of the applicants before the Court, Mr Rashid Hajili, was published on the website of the Voice of America radio station. The article was entitled “Rashid Hajili: The European Court’s Decision May Positively Influence the Judicial System and Legislation of the Country” (“Rəşid Hajılı: Avropa Məhkəsinin qərarı ölkədəki məhkəmə sisteminə və qanunvericiliyə müsbət təsir edə bilər”). The relevant parts of the interview read as follows:
“Question: Do the journalists agree with the friendly-settlement proposal?
Answer: I, as a lawyer, informed each journalist of, and sent them, the Government’s proposal. They have to make clear their decision separately, as well as to decide together by discussing it.
Question: What do the Government propose? Who are the applicant journalists?
Answer: The applicants are the director of the Turan Information Agency, Mehman Aliyev, the editor of the Azadliq newspaper, Ganimat Zahid [Zayidov], the journalist Shahveled Chobanoglu [Namazov], the editor-in-chief of the Yeni Musavat newspaper, Rauf Arifoglu, and reporters at that newspaper Azer Aykhan [Abbasov], Zabil Mugabiloglu [Najizade], Elshad Mammadli [Mammadov] and Etibar Seyidaga [Agayev]. Our claim was for 5,000 euros for each applicant plus the payment of additional cost and expenses. The Government offered to pay the non-pecuniary damage claim in full, but did not offer to pay the court and legal costs.
Question: Would the European Court adopt a judgment if there was no agreement between the journalists and the Government?
Answer: If the applicants do not accept the Government’s offer, the European Court will probably continue with its examination of the case. It is true that justification has to be given for why the friendly settlement was not accepted. The justification has to be accompanied by arguments. If the Court considers that the justification is not supported by arguments, it could discontinue the case. It may strike the case out of the list and inform the applicants of the acceptance of the Government’s proposal.
Question: The media writes that there is disagreement between the applicant journalists. Some of the applicants want to accept the Government’s proposal, other journalists will not accept the friendly-settlement proposal as the Government do not guarantee freedom of assembly. They seek the adoption of a judgment by the European Court in order to have a judicial precedent. What do you think about this?
Answer: Discussion of the friendly-settlement proposal in the media does not comply with the rules on confidentiality. On the other hand, if the victim journalists make the issue public, it is also their right. I have not yet received the final decision from the applicants ...”
20. By a letter of 12 September 2011, the applicants informed the Court of their refusal to accept the Government’s friendly-settlement proposal.