ITEMID: 001-90235
LANGUAGEISOCODE: ENG
RESPONDENT: NOR
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF TV VEST AS AND ROGALAND PENSJONISTPARTI v. NORWAY (extracts)
IMPORTANCE: 1
CONCLUSION: Violation of Art. 10;Just satisfaction dismissed (out of time)
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 7. The first applicant, TV Vest AS (Ltd.), is a television broadcasting company located in Stavanger in the County of Rogaland, on the west coast of Norway. The second applicant, Rogaland Pensjonistparti, is the regional branch of the Pensjonistpartiet, which will be referred to hereinafter as “the Pensioners Party”. This is a small political party, which, in the local and regional elections held on 15 September 2003, obtained 1.3% of the votes nationally, while the Rogaland branch obtained 2.3% of the votes in Rogaland.
8. With a view to the above-mentioned elections the Party asked to purchase advertising time from TV Vest in order to broadcast political advertisements. In the Spring of 2003 TV Vest, considering that the broadcast would be lawful, agreed to broadcast three different advertisements, with a duration of fifteen seconds each, seven times per day over eight days during the period from 14 August to 12 September 2003, and for which the Party would pay a fee of 30,000 Norwegian kroner (NOK). The short broadcasts sought to portray the values of the Pensioners Party and encouraged viewers to vote for them:
Advertising film 1:
Egil Willumsen, Pensioners Party: “We want this splendid property here to be given back to the people of Stavanger and Rogaland as a specialised hospital for the elderly and chronically ill. Vote for the Pensioners Party.”
Picture with text:
“We need your vote on 15 September! Vote for the Pensioners Party.”
Advertising film 2:
Åshild Bjørnevoll, Pensioners Party: “Young people are our future. Some of them live in difficult circumstances and need help and support. If they do not receive the assistance they require, it may have major consequences for us all. Vote for the Pensioners Party for a better future.”
Picture with text:
“We need your vote on 15 September! Vote for the Pensioners Party.”
Advertising film 3:
Tor Kristian Rønneberg, Pensioners Party: “A sufficient number of good nursing home places. Secure jobs, particularly for older workers, and decent pension schemes. If you are interested in any of this, vote for the Pensioners Party.”
Picture with text:
“We need your vote on 15 September! Vote for the Pensioners Party.”
9. On 12 August 2003 the first applicant notified the State Media Authority (Statens medieforvaltning – the “Media Authority”) of its intention to broadcast the political advertisements and argued that such broadcasting was protected by Article 10 of the Convention.
10. The first applicant broadcast the political advertisements on 14, 15, 16, 18, 28, 29 and 30 August and on 1, 3, 12 and 13 September 2003. According to a public statement by the second applicant dated 30 August 2003, although it had been made aware of the statutory prohibition of political advertising on television, it had nonetheless decided to advertise for a number of reasons:
“The Pensioners Party in Rogaland has found it difficult to gain the attention of the media. We regard this as a 'golden opportunity' to highlight the party's values and political priorities.
The bigger parties are given very wide leeway in connection both with debates and with various initiatives in radio, television and the press. In this regard, the Pensioners Party often feels excluded and has very limited opportunities to make itself heard.
In addition, the Party is never identified in national or local opinion polls, but is included in the group 'Others'.
We in the Pensioners Party took responsibility for the content of the messages and chose three themes which best reflected the Party's values and basic attitudes at local level ...”.
11. On 27 August 2003 the Media Authority warned TV Vest that they were considering issuing a fine against the company for violating the ban on political advertising on television. TV Vest answered the letter on 4 September 2003.
12. On 10 September 2003 the Media Authority decided to impose a fine of NOK 35,000 on TV Vest, under section 10-3 of the Broadcasting Act 1992 and section 10-2 of the Broadcasting Regulations, for violation of the prohibition on political advertising in television broadcasts as provided in section 3-1(3) of the Act.
13. The applicants provided the following information on the extent to which the Rogaland Pensioners Party had been the subject of editorial coverage during the period August-September 2003 by the three broadcasters indicated below:
(i) TV2 (privately owned broadcasting company) had informed them that in the course of 2003 the Pensioners Party as such had been given editorial coverage on three occasions: once when TV Vest had brought an action against the Norwegian State to challenge the legality of the fine imposed for the broadcasting of the political advertisements at issue; a second time concerning the party's electoral list cooperation with three other small parties; and lastly in connection with the actual election results. In none of these instances had the local Rogaland Pensioners Party been specifically mentioned.
(ii) The NRK (“The Norwegian Broadcasting Corporation”, national public broadcaster) had stated that there were two short items (studio comments) that had been broadcast during the election campaign period, respectively on 27 August and 10 September 2003, both of which had concerned the issue in the present case of political advertising.
(iii) TV Vest had informed them that the Rogaland Pensioners Party had been referred to three times: on 12 August 2003 when the decision to air the advertisement at issue had been taken, on 27 August 2003 in connection with notification of the State's reaction against these advertisements, and on 10 September 2003 regarding the actual fee. None of the said items had been full features and none of them had focused on the Rogaland Pensioners Party's politics.
14. TV Vest appealed against the decision of 10 September 2003 to Oslo City Court (Oslo tingrett). TV Vest did not dispute that the content was political advertising and thus fell foul of the above-mentioned prohibition in the Broadcasting Act but submitted that this provision was incompatible with the right to freedom of expression in Article 100 of the Constitution and Article 10 of the Convention.
15. By a judgment of 23 February 2004 the City Court upheld the Media Authority's decision.
16. TV Vest appealed against the City Court's judgment to the Supreme Court (Høyesterett), challenging its application of the law. The Supreme Court granted leave to appeal under Article 6 (2) of the Code of Civil Procedure. The second applicant acted as a third-party intervener (hjelpeintervenient).
17. In a judgment of 12 November 2004 the Supreme Court, by four votes to one, upheld the Media Authority's decision.
18. In his opinion, to which three other members subscribed, Mr Justice Oftedal Broch disagreed with the first applicant's submission that the case raised an issue at the heart of freedom of expression. The most central aspect of the case was that the legislature had addressed certain issues for the democratic process concerning the limits to be imposed on the use of television for paid communication in the course of a political debate. Thus there was stronger reason to emphasise the legislature's intention in this area than to dwell on the protection of the content in question. The political bodies were better placed than the courts to assess what measures were suitable for heightening the level of political debate. The rationale for the prohibition of political advertising on television was that it was likely to lead to an inappropriate form of political debate. An advertisement containing a political message could easily give a distorted picture of complex issues. Opening the possibilities for such advertisements would mean that financially powerful groups would have greater opportunities for marketing their opinions than less resourceful parties or interest organisations.
19. Thus, Mr Justice Oftedal Broch observed, concerns about quality and pluralism in political debate were central and formed the basis of the national courts' assessment. It was not the content but the form and medium of the expression that was being regulated and the Pensioners Party, like other parties, had many other means for addressing the electorate. There was hardly any reason to consider that the prohibition in section 3-1(3) of the Broadcasting Act was incompatible with freedom of expression as protected by Article 100 of the Constitution either in its version as applicable at the material time or in its amended version of 30 September 2004.
20. As regards the issue of necessity under Article 10 § 2 of the Convention Mr Justice Oftedal Broch had particular regard to the Court's judgments in Vgt Verein gegen Tierfabriken v. Switzerland (no. 24699/94, ECHR 2001VI) and Murphy v. Ireland (no. 44179/98, ECHR 2003IX), concerning restrictions on political broadcasts relating respectively to animal protection and to the rearing of animals (on television) and to the promotion of religious gatherings (on the radio). Mr Justice Oftedal Broch found, inter alia, as follows:
“(60) In the light of these two judgments, how should we assess the Norwegian prohibition of political advertising on television? Neither of the cases is completely parallel to the situation now at hand. The main difference from the VgT case is that the latter concerned a group – the Association against Animal Factories – which focused on a topic of current interest: the protection of animals in connection with the industrial production of meat. The association wished to participate in the debate on this issue by showing a film. In this respect, there is a greater parallel between the Pensioners Party and the case of Murphy v. Ireland in terms of its wish to make its existence and manifesto known to a broad public. What distinguishes the present case from the Murphy case is the fact that religious issues in Ireland must be regarded as far more controversial and could presumably cause greater social unrest than political movements in Norway. Having said this, however, I find a considerable degree of parallelism between the Court's arguments in Murphy and my own views on the Norwegian prohibition in relation to Article 10.
(61) A decisive difference in the Court's approach between the two cases is that in the VgT case the Court found that the State's margin of appreciation was narrow, whereas its margin of appreciation in the Murphy case was broad. A factor that was emphasised in the Murphy case, and that also applies in our case, is that there is no European consensus on political advertising. There are major differences in the rules currently in force in European countries. There is a group of countries, including Norway, Sweden, Denmark, France, Germany and Ireland, which have prohibited political advertising to varying degrees. Other countries, such as Hungary, Lithuania, Poland, Romania, Netherlands and Finland, basically have no such barrier. This difference has a further dimension in that the rules in many countries now appear to be undergoing revision. But the draft amendments point in different directions, thereby underscoring the diversity of views. In some countries, the rules are being liberalised, while other countries, like Denmark, are tightening the prohibitions that already exist. In Norway, the Government has announced its intention to present a Bill under which political advertising will be accepted within certain limits. At the same time, we have seen that the right to continue to impose a prohibition is being maintained through the amendment to Article 100 of the Constitution of Norway. In other words, the rules governing political advertising are subject to constant change, which should mean that States have considerable freedom to choose their own form of regulation.
(62) The type of interference concerned in this case also suggests a broad margin of appreciation. The regulation of political advertising is less a question of the individual's freedom of expression and far more a question of how best to promote political debate and ensure good frameworks for the democratic electoral process. In this light, our political bodies have – hitherto – deemed that political advertising on television promotes an unfavourable simplification of political issues, as well as giving financially powerful groups a greater opportunity to put forward their views. These considerations have a direct bearing on the desire to ensure quality in the political process. In this area, it is essential that institutions vested with democratic legitimacy be given a broad margin of appreciation based on their assessment of national conditions. Parliament's evaluation as regards expediency should be applied unless – as stated in the Kjuus case – it appears to be unfounded or otherwise objectively weak. On the other hand, this limitation is important, and particularly in the present case, which has to do with a majority in Parliament determining the general conditions for political debate. This means that the courts should give particularly close consideration to whether the solution has a discriminatory effect. In the present case, the grounds cited by Parliament in support of the prohibition of advertising cannot be said to be of a discriminatory nature. On the contrary, it is argued that political advertising will give large, affluent parties a further advantage to the detriment of small parties.
(63) In assessing the specific circumstances of the present case, questions can nevertheless be raised as regards the significance that should be attached to the fact that the Pensioners Party, far from having the financial strength to abuse the power of advertising, on the contrary and unlike the more established parties, believed that it needed the advertising precisely to be able to establish a channel to a broad public during the period prior to the municipal elections. Even if this point of view is accepted per se, in my opinion no importance can be placed on it in assessing the prohibition of advertising in relation to the Convention. The reason for this is that it is not democratically possible to differentiate between the various political parties – least of all just before an election. And if our basic premise is that all political parties must be treated alike with regard to paid television advertising, the possibility of small parties being overshadowed by large ones cannot be excluded.
(64) I have mentioned that there currently appears to be a majority in Parliament in favour of relaxing the prohibition of advertising, that solutions in European countries vary and that in many countries the attitude towards political advertising is now being reassessed – with differing results. I have underscored this very situation as an argument in support of allowing States a broad margin of appreciation. Now one might ask whether the change in the Parliamentary majority's political views on the prohibition of advertising entails that neither the will of the legislature nor the democratic roots of the statute can militate any longer in favour of maintaining the current statutory prohibition on the basis of a broad margin of appreciation. In my opinion, this cannot be the case. It would mean that the legislature had renounced its margin of appreciation despite clear statements to the effect that it did not wish to bind future developments to a specific solution.
(65) In sum, therefore, it is my view that a prohibition or regulation of political advertising on television must primarily be seen as the establishment of limits for political debate. These are decisions that should be taken by a country's democratic institutions, and consequently an area in which a country's political bodies must be given great freedom of action in relation to Article 10. The fact that there is no European consensus, but on the contrary a wide range of national solutions in this field, strengthens this view.
(66) In view of all the channels that political parties can use to communicate their message to a broad public, the prohibition of political advertising on television appears to be a limited interference that is not disproportionate to the purposes the interference aims to achieve. In this light, the grounds underlying the provision in section 3-1(3) of the Broadcasting Act are relevant and sufficient. If the special circumstances of the present case are examined more closely, this becomes even clearer. The prohibition of advertising was applied to a political party immediately prior to an election. At such a time, it is particularly important to ensure a 'fair climate of debate', and some countries have limited their ban on advertising precisely to this period. The possibility that a broad interpretation of the prohibition of political advertising on television may conflict with Article 10 of the Convention, as illustrated by the Court's VgT judgment, is, in my opinion, of no significance for the application of Article 10 to the facts of our case, which lies within the core area of the prohibition.
(67) In the light of the foregoing, it is my view that there has been no violation of Article 10 of the Convention.”
21. The dissenting judge, Mr Justice Skoghøy, stated:
“(70) ... I have concluded that the Media Authority's administrative decision to impose a fine on TV Vest is an unlawful interference with the right to freedom of expression under Article 10 of the Convention, and that the appeal by TV Vest AS must therefore be allowed. ...
(75) In deciding whether there is a sufficiently pressing need for interference in the right to freedom of expression, the Court has granted national authorities and courts a certain margin of appreciation. The reason for this is that national authorities and courts will often be in a better position to assess the necessity of an interference and have greater insight into any special circumstances that might apply in the individual countries, and the fact that it is the States Parties to the Convention that have the primary responsibility for protecting and enforcing human rights (see Lorenzen et al.: Den Europæiske Menneskerettighedskonvention med kommentarer [The European Convention on Human Rights with comments], 2nd edition (2003), p. 23, and Harris/O'Boyle/Warbrick: Law of the European Convention on Human Rights (1995), p. 14). The part of the grounds that states that national authorities will often be in a better position to assess the necessity of an interference also applies, by and large, to the relationship between national courts of law and national legislatures, and against this background the principle has been adopted in Norwegian case-law that when Norwegian courts examine the question whether Norwegian legislation breaches international human rights conventions, they should accord the Norwegian legislature a similar margin of appreciation, see for example Norsk Retstidende (“Rt” - Norwegian Supreme Court Reports) 1999-961. This is not necessary for the purposes of the Convention; nor does the Convention preclude it. As mentioned earlier, however, freedom of expression is one of the fundamental pillars of democracy, and it is therefore important that small political groups are also able to make themselves heard. For this reason, strong objections are raised against attaching too much importance to the opinion of the political majority at any given time as regards how far freedom of expression on political issues should go. The Court's case-law is also based on the idea that States' margin of appreciation is relatively narrow in cases regarding expressions of political opinion; see VgT, § 67, and Murphy, § 67. ....
(76) The main grounds for the Broadcasting Act's prohibition of political advertising on television is that if such advertising were to be permitted, it could result in financially powerful groups having a greater opportunity than others to disseminate their views to the detriment of parties and special-interest organisations with fewer resources, thereby impairing democratic equality, and in the expression of political opinions through advertising easily becoming sloganised and manipulative and leading to an unfavourable form of debate. The prohibition has been limited to television because this medium is presumed to be particularly effective and to have a greater ability to influence the public than other media (see Proposition No. 58 (1998-1999) to the Odelsting [the larger division of Parliament], p. 12).
(77) The reasons cited for not allowing political advertising on television are legitimate in relation to Article 10 § 2 ('protect the rights ... of others'), but as the appellant has forcefully argued, there are also weighty arguments in favour of permitting such advertising. Editorial television broadcasts can easily become dominated by the most influential political parties. Smaller parties do not have the same possibilities of making themselves seen and heard. Allowing advertising for political parties would also help to promote direct communication with the voters – without the filtering that takes place through the media's editorial staff. This is a consideration that is heavily emphasised by the Norwegian Government Commission on Freedom of Expression in Norges Offentlige Utredninger (“NOU” Official Norwegian Report) 1999:27, pp. 140-141. It is pointed out in the report that complaints that the media to a certain extent 'set the agenda' appear to be justified, and that as a result of the filtering that takes place through the media's editorial processes, the political parties must adopt a strategic approach to the media to ensure that their message is communicated. This situation has been accentuated by the fact that television, which for many reasons must be more 'toughly edited' than newspapers, has become the dominant vector for the general public.
(78) With regard to the argument concerning the form of debate, the fact is that the medium of television has contributed towards making political debate more slogan-oriented and agitational, and as the Norwegian Commission on Freedom of Expression points out, it is doubtful whether allowing political television advertising will change the character of political communication to any appreciable degree (see Official Norwegian Report NOU 1999:27, p. 140). The eventuality that financially powerful groups might dominate political debate on television, and that the latter might become overly characterised by slogans and trivialised can be counteracted in other ways, for instance by limiting the extent of, and broadcast time for, political advertising on television. As the Commission pointed out, in a democratic society it is not necessarily illegitimate to appeal to feelings.
(79) In my opinion, in the light of the above, there cannot be deemed to be a sufficiently pressing social need for a total prohibition of political advertising on television. A total ban is not proportionate to the purposes sought to be achieved. Even if the reasons advanced in support of prohibiting such advertising are legitimate, they are not sufficiently weighty to justify a total ban.
(80) The fact that a total prohibition on political advertising on television is incompatible with Article 10 of the Convention is, in my opinion, also evident from the Court's judgment in the case of VgT v. Switzerland. In paragraph 75 of this judgment the Court states that it cannot exclude that a ban on political advertising may be compatible with Article 10 in certain situations. However, the Court pointed out that in order for such a prohibition to be acceptable, it must be based on grounds that meet the requirements set out in paragraph 2 of Article 10. The case in question concerned a ban on political advertising on radio and television. In paragraph 74 the Court points out that a prohibition of political advertising that is limited to certain media does not appear to be of a particularly pressing nature.
(81) As the first voting judge has mentioned, the VgT case concerns a television advertising campaign presented by an animal protection organisation, and the State has asserted that the judgment must be deemed to be limited to idealistic advertising, in opposition to commercial advertising, and that the scope of the judgment has in any event been narrowed down by the Murphy judgment. I disagree with these arguments. The grounds in paragraph 75 of the VgT judgment concern political advertising in general, and there are no grounds for contending that it is limited to idealistic counter-advertising against commercial advertising. Nor are there any grounds in the Murphy judgment for arguing that it aims to deviate from or limit the scope of the VgT judgment. On the contrary, in paragraph 67 of the Murphy judgment, it is emphasised that as far as political speech or debate of questions of general interest are concerned, there is little scope for restrictions under paragraph 2 of Article 10. When the Court concluded in the Murphy judgment that there was no violation of Article 10, this was based on the explicit grounds that the Murphy case – contrary to the case of VgT – concerned the expression of religious beliefs, and that in such cases national States should have a greater margin of appreciation (see paragraph 67 of the Murphy judgment). Reference was made in the specific grounds to the extreme sensitivity of the question of broadcasting of religious advertising in Ireland (paragraph 73). Inasmuch as the Court in Murphy accentuates the difference between political and religious advertising, and underscores the special considerations that apply in the case of the expression of religious beliefs in Ireland, the Murphy judgment in my opinion serves not to weaken, but to strengthen and further underpin the view regarding political advertising on television expressed by the Court in the VgT judgment.
(82) In paragraph 75 of VgT, the Court emphasised that the animal protection association, which was the applicant in the case concerned, was not a financially powerful group, and this argument has been invoked by the appellant in respect of the Pensioners Party. However, as I pointed out earlier, I do not believe that the arguments justifying the legal basis for interference necessarily apply in full to the present case. In my opinion, it would be totally unacceptable if the right of political parties to use television advertising were to depend on the financial situation of the individual parties.
(83) On the other hand, when assessing whether there is a sufficiently pressing social need for a total prohibition of political advertising on television, great importance must in my opinion be attached to the fact that, in connection with the amendment of Article 100 of the Constitution of Norway in 2004, the majority in Parliament's Standing Committee on Scrutiny and Constitutional Affairs was in favour of abolishing the current total prohibition and instead introducing regulating restrictions. ...
(84) ... TV Vest has argued that a total prohibition of televised political advertising will be contrary to Article 100 of the Constitution, as it reads following the constitutional amendment adopted on 30 September 2004. I see no reason to address this question, as it appears to be somewhat unclear whether the majority in the Standing Committee on Scrutiny and Constitutional Affairs considered that the right to political advertising on television derived from the new Article 100, or whether such a right had to be enacted first. In relation to the question whether a total prohibition of political advertising on television is compatible with Article 10 § 2 of the Convention, however, the position taken by the majority in the Standing Committee, in connection with the constitutional amendment, is of considerable interest, in any event. Since the majority in the Standing Committee found the current total prohibition of televised political advertising to be 'unfortunate from the point of view of freedom of expression' and in the underlying grounds overruled the main arguments that were adduced in support of the prohibition at the time it was adopted, I cannot see that it can be claimed with any particular degree of credibility that there is such a pressing social need for such a prohibition that it can be accepted as compatible with paragraph 2 of Article 10. In this connection, I find it necessary to emphasise that the change in the Parliamentary majority's attitude was not caused by changes in society, but is solely due to the fact that the majority has realised that there is no sufficiently pressing social need for such interference with the right to freedom of expression.
(85) The Media Authority's administrative decision of 10 September 2003 to impose a fine on TV Vest was taken under section 3-1(3) (see also section 10-3) of the Broadcasting Act. The advertisements concerned in this case were aired during the election campaign for municipal and county elections in 2003. I see no reason to address the question whether prohibiting political advertising on television during election campaigns is compatible with paragraph 2 of Article 10 of the Convention. The norm that constitutes the legal basis for the administrative decision of the Media Authority contains a total prohibition of political advertising on television. As Lorenzen et al. (op. cit. p. 51) points out, when examining the question whether an interference in the exercise of a human right is compatible with the Convention, it is necessary to 'assess whether the national legal basis meets the human rights requirements as regards quality of law in relation to the powers of interference that derive from the Convention and the Court's case-law'. When examining the question whether the national norm that provides legal authority for interference satisfies the requirements set out in the Convention, the question whether the national legal authority for interference is circumscribed sufficiently narrowly so as to satisfy the requirement of proportionality must also be examined. Since the prohibition of political advertising on television, which constitutes the legal basis for the Media Authority's decisions, is not circumscribed sufficiently narrowly so as to satisfy the proportionality requirement set out in paragraph 2 of Article 10, the decision that was made pursuant to this provision must, in my opinion, be found to conflict with the Convention, even though the Convention might authorise the prohibition of political advertising on television during an election campaign. If the Norwegian legislature should wish to have such a prohibition, it would in such cases have to be the subject of special consideration, and relevant, sufficiently weighty and convincing grounds would have to be provided. The grounds adduced by the legislature for the existing total prohibition cannot justify a limited prohibition of this nature.
(86) On this basis it is my conclusion that the Norwegian Media Authority's administrative decision to impose a fine on TV Vest AS is invalid (see section 3 and also section 2, of the Human Rights Act). ...”
22. Section 3-1(3) of the Broadcasting Act 1992 reads:
“Broadcasters shall not transmit advertisements for life philosophy or political opinions through television. This applies also to teletext.”
23. The Government submitted that in 2005 the Media Authority had found that an advertisement broadcast by TV2 for an anti-terrorism group named the European Security Advocacy Group (ESAG) contained a political message which clearly fell within the meaning of the Broadcasting Act (section 3-1(3)). However, the Authority had concluded that the prohibition could not be enforced because to do so would violate Article 10 of the Convention. The Authority distinguished the facts from the Supreme Court's ruling in the TV Vest case. The ESAG advertisement had to be regarded as a contribution to a general public debate on how to fight terrorism, it had been transmitted outside the election period, and had not been connected to any political party or political organisation, but to a (social) interest group. Accordingly, the Authority found more similarities with the Court's judgment in the VgT case and, by applying a narrower margin of appreciation, that the interference could not be said to be necessary for the purposes of Article 10 § 2.
24. The respondent Government produced a copy of a survey performed by the Secretariat of the European Platform of Regulatory Authorities (“23rd EPRA Meeting, Elsinore, Denmark, 17-19 May 2006, Background paper - Plenary, Political advertising: case studies and monitoring”) on the basis of answers to a questionnaire, received from the authorities of 31 countries, i.e., Austria, Belgium (x2), Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, the Isle of Man, Israel (x2), Italy, Latvia, Lithuania, Luxembourg, FYROM, Malta, the Netherlands, Norway, Poland, Portugal, Romania, Spain, Sweden and Switzerland (x2). The report included the following observations:
“• Countries with a ban on paid political advertising
Paid political advertising is statutorily forbidden in the vast majority of Western European countries such as Belgium, Denmark, France, Germany, Ireland, Malta, Norway, Portugal, Sweden, Switzerland, and the UK. Several countries from central and Eastern Europe such as the Czech Republic and Romania, also have a prohibition of paid political advertising.
The most traditional justification for this prohibition is that rich or well-established parties would be able to afford significantly more advertising time than new or minority parties – thus amounting to a discriminatory practice. Another rationale invoked for the restriction or the ban is that it may lead to divisiveness in society and give rise to public concern. It has also been suggested, albeit less frequently, that a prohibition would preserve the quality of political debate.
• Countries allowing paid political advertising
Paid political advertising is allowed in many central and Eastern countries such as Bosnia and Herzegovina, Bulgaria, Croatia, Hungary, Macedonia, Poland, and the Baltic States: Estonia, Latvia and Lithuania. In a few countries such as in Bosnia-Herzegovina (60 days prior to Election Day), and Croatia, political advertising is only permitted during the election period.
It is often overlooked that several countries in Western Europe, such as in Austria, Finland, Luxembourg (for the moment, this will change shortly) and the Netherlands also allow paid political advertising.
In Italy, until 2003 paid political advertising, i.e. self-managed spaces, was allowed also for national broadcasters, provided that they also transmitted 'political communications spaces' (spazi di comunicazione politica), i.e. discussion programmes with the participation of political representatives; now it is allowed only for local broadcasters and has to cost no more than 70% of the price applied to commercial advertisements, whereas national broadcasters may only broadcast them for free.
In Greece, while there is a permanent and wide-ranging ban on the political advertisement of persons, paid political advertising of political parties is not prohibited.
In Spain, while the ban of political advertising applies permanently for television broadcasters, the Spanish Electoral Code permits paid electoral advertising on commercial radio stations, only during the election period.
The main rationale for paid political advertising is that it may enable new candidates to obtain recognition and a profile. It is also often argued that the right to political advertising is an integral part of the right to freedom of expression and information.
...
• Countries allocating free airtime for political parties and/or candidates
In the vast majority of countries, such as Belgium (French Speaking Community), Czech Republic, Estonia, France, Germany, Greece, Ireland, Italy, Latvia, Luxembourg, Malta, parties are usually granted free airtime to present their programmes, sometimes in the format of short advertising spots. The broadcasters are usually reimbursed for their technical costs either by the State or directly by the parties.
...
• Countries with no system of allocation of free airtime.
Several countries have no specific provisions concerning free airtime for political parties. In a few countries, such as Belgium (Flemish speaking Community), Bulgaria, Norway, Sweden, parties are not granted any free airtime to present their programmes. In other countries such as Switzerland, Finland or Cyprus, this is a matter left to the broadcasters, who sometimes allow this practice on a voluntary basis.”
25. Recommendation No. R (99) 15 of the Council of Europe's Committee of Ministers on measures concerning media coverage of election campaigns provided as follows:
“In member States where political parties and candidates are permitted to buy advertising space for electoral purposes, regulatory frameworks should ensure that:
- the possibility of buying advertising space should be available to all contending parties, and on equal conditions and rates of payment;
- the public is aware that the message is a paid political advertisement.
Member States may consider introducing a provision in their regulatory frameworks to limit the amount of political advertising space which a given party or candidate can purchase.”
26. The Explanatory Memorandum to that Recommendation included the following comments in relation to the above:
“Paid political advertising in the broadcast media has traditionally been prohibited in many Council of Europe member States, whilst it has been accepted in others. One of its major advantages is the opportunity which it provides for all political forces to widely disseminate their messages/programmes. On the other hand, it may give an unfair advantage to those parties or candidates who can purchase important amounts of airtime.
In view of the different positions on this matter, the Recommendation does not take a stance on whether this practice should be accepted or not, and simply limits itself to saying that if paid advertising is allowed it should be subject to some minimum rules: one, that equal treatment (in terms of access and rates) is given to all parties requesting airtime, and two, that the public is aware that the message has been paid for.
It may also be considered important to set limits on the amount of paid advertising that can be purchased by a single party. Nevertheless, the Recommendation does not specify whether it is desirable to do so nor does it set any precise limits on the amount of paid advertising, as it is considered that the decision on this matter should be taken at the national level.”
27. The Committee of Ministers, on 7 November 2007, adopted recommendation Rec(2007)15, which entailed a revision of Recommendation No. R (99) 15. In so far as the above provisions were concerned it may be noted that the Draft Explanatory Memorandum ((2007) 155 add) included the following addition:
“78. In view of the different positions on this matter, Recommendation CM/Rec(2007)... does not take a stance on whether this practice should be accepted or not, and simply limits itself to saying that if paid advertising is allowed it should be subject to some minimum rules, in particular that equal treatment (in terms of access and rates) is given to all parties requesting airtime.”
VIOLATED_ARTICLES: 10


ITEMID: 001-6023
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: BAKARIC v. CROATIA
IMPORTANCE: 1
CONCLUSION: Inadmissible
JUDGES: Georg Ress
TEXT: The applicant, Josip Bakarić, is a Croatian citizen, born in 1928 and living in Zagreb. The respondent Government are represented by their Agent, Ms Lidija Lukina-Karajković.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant served in the Yugoslav People’s Army (YPA) and in 1983 retired from service. His military pension was assessed according to his rank and years of service and was paid from the Yugoslav Federal Pension Fund. The payments terminated in December 1991, following the dissolution of the Federal Republic of Yugoslavia.
However, on 12 December 1992, the Social Security Fund, Zagreb Office (Republički fond mirovinskog i invalidskog osigurnaja radnika Hrvatske, Područna služba u Zagrebu), assessed the applicant’s pension, as from 1 October 1992, to 63,22 % of the amount he had received in December 1991.
After the ensuing applicant’s appeal was dismissed, he instituted proceedings with the Administrative Court (Upravni sud Republike Hrvatske). The applicant claimed that the decisions to decrease his military pension were unlawful and discriminatory and impaired his property rights.
The Administrative Court dismissed the applicant’s claim on 17 December 1993. It found that the lower bodies applied the provisions of the laws regulating pension rights of the former YPA officers correctly. They based their decision on the Act of 31 December 1991 which provided that the former YPA officers’ pensions were to be assessed to 63,22 % of what they received in December 1991. Furthermore, the applicant’s property rights were not impaired by the Croatian authorities as the Yugoslav Federal Fund stopped paying the applicant’s pension. The Croatian authorities accepted the payment of his pension according to the relevant provisions of the Acts regulating that matter. The applicant failed to lodge a constitutional complaint against the Administrative Court’s decision.
Instead, the applicant challenged the constitutionality of the laws enacted in 1991 and 1992 regulating pension rights of the former YPA officers.
On 4 February 1998 the Constitutional Court terminated those proceedings as on 18 October 1993 the Croatian Parliament had passed a new law concerning that matter - the Former YPA Officers Pension Act (Zakon o ostvarivanju prava iz mirovnskog i invalidskog osiguranja pripadnika bivše JNA - Official Gazette no. 96/1993).
In the meantime, on 1 February 1994 the applicant lodged another constitutional claim challenging the constitutionality of the above 1993 Act. He complained that the 1993 Act impaired his property rights in that it provided that his military pension be reduced and in that it discriminated against him in so far as pensions of other categories of citizens were not reduced.
On 20 January 1999 the Constitutional Court (Ustavni sud Republike Hrvatske) terminated the proceedings concerning the applicant’s claim as on 1 January 1999 new legislation was again enacted regulating pension rights of all Croatian citizens.
The relevant provisions of the 1991 Constitutional Act on the Constitutional Court (hereinafter the “1991 Constitutional Court Act” - Ustavni zakon o Ustavnom sudu, Official Gazette 13/1991) read as follows:
“Every person has a right to institute proceedings challenging the constitutionality of the laws...”
“Each person whose rights have been violated by a decision based on the legislation declared unconstitutional or unlawful may ask the body that took the decision to vary it...”
“The Constitutional Court shall terminate proceedings concerning the constitutionality of legislation that has been repealed or brought into line with the Constitution and statute law while those proceedings are pending before the Constitutional Court.”
“Every person, who considers that any of his constitutional rights have been violated by a decision of judicial or administrative body or any other body invested with public authority, may lodge a constitutional complaint with the Constitutional Court.”
“By a decision accepting a constitutional complaint the Constitutional Court quashes the contested decision and remits a case for re-trial.”


ITEMID: 001-60431
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF STES COLAS EST AND OTHERS v. FRANCE
IMPORTANCE: 1
CONCLUSION: Violation of Art. 8;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
TEXT: 8. Following complaints from the National Union of Finishing Contractors (Syndicat national des entreprises de second œuvre) that large construction firms were engaging in certain illegal practices, France's central government authorities instructed the National Investigations Office to carry out a large-scale administrative investigation into the conduct of public-works contractors.
9. In a memorandum dated 9 October 1985 the head of the National Investigations Office – a body attached to the Competition and Consumer Affairs Department, which on 5 November 1985 became the Department for Competition, Consumer Affairs and Fraud Prevention (“the DGCCRF”) – provided the officials responsible at inter-département level with details of the planned investigation into the conduct of roadworks contractors in local tendering procedures. Appended to the memorandum was a list of companies to be inspected, either at their head office or at local branch offices, in seventeen départements. The list included the three applicant companies.
10. On 19 November 1985 inspectors from the DGCCRF carried out simultaneous raids on fifty-six companies without authorisation from the companies' management and seized several thousand documents. At a later date, on 15 October 1986, they conducted further inquiries with a view to obtaining statements.
11. On each occasion the inspectors entered the applicant companies' premises under the provisions of Ordinance no. 45-1484 of 30 June 1945, which did not require any judicial authorisation. While carrying out the raids, the inspectors seized various documents containing evidence of unlawful agreements relating to certain contracts that did not appear in the list of contracts concerned by the investigation.
12. On 14 November 1986, on the basis of those documents, the Minister for Economic Affairs, Finance and Privatisation asked the Competition Commission (which became the Competition Council after the entry into force of Ordinance no. 86-1243 of 1 December 1986) to investigate certain acts which, in his opinion, amounted to collusion between separate firms, artificial competition between firms belonging to one and the same group in local tendering procedures for roadworks contracts, and agreements restricting competition in the operation of mixing plants.
13. On 30 July 1987 the Competition Council was additionally asked by the head of the DGCCRF to investigate acts of a similar nature. That request concerned fifty-five companies, including the applicant companies.
14. In a decision of 25 October 1989, published in the Official Bulletin on Competition, Consumer Affairs and Fraud Prevention (Bulletin officiel de la concurrence, de la consommation et de la répression des fraudes – “the BOCCRF”), the Competition Council, finding evidence of practices outlawed by the ordinance of 30 June 1945 and the ordinance of 1 December 1986, fined the first applicant company 12,000,000 French francs (FRF), the second FRF 4,000,000 and the third FRF 6,000,000.
15. In a judgment of 4 July 1990 published in the BOCCRF, the Paris Court of Appeal upheld all those penalties. The applicant companies appealed on points of law.
16. In a judgment of 6 October 1992, likewise published in the BOCCRF, the Commercial Division of the Court of Cassation quashed the judgment of the Paris Court of Appeal, on the ground that its calculation of turnover and its assessment of the amount of the fines had had no basis in law. It remitted the case to the Paris Court of Appeal sitting with different judges.
17. At the retrial in the Court of Appeal, the applicant companies contested the lawfulness of the searches and seizures carried out by the inspectors, without any judicial authorisation, under the 1945 ordinance. They relied on Article 8 of the Convention.
18. On 8 April 1994 the head of the Competition and Planning Section of the DGCCRF submitted additional observations on behalf of the Minister for Economic Affairs, stating, inter alia:
“... I will consider two points concerning the investigation procedure ... :
(a) The inspections carried out under the 1945 ordinance should have been judicially authorised in advance, in accordance with the European Convention on Human Rights ...
(b) Secondly, the seizures carried out by the DGCCRF officials went beyond the actual purpose of the inspections, in that documents not expressly referred to in the application for the investigation were taken from several companies' head offices.
... section 15 of Ordinance no. 45-1484 of 30 June 1945 is worded in very explicit terms, as it states that in the course of their investigations, inspectors may require the production of, and seize, documents of any kind that are likely to facilitate the accomplishment of their tasks, irrespective of whose hands the documents are in. The distinctive feature of this procedure was that, in contrast to the provisions now in force, which were introduced by section 48 of the ordinance of 1 December 1986, the inspections were not carried out under constant judicial supervision. In the absence of any provisions on the matter, it is hard to see what supervisory procedure should have been followed.
... it appears from the provisions of the 1945 ordinances that the inspectors were vested with powers of search and seizure which they exercised when carrying out their general task of obtaining evidence. The aforementioned section 15 must be interpreted in the light of section 16 of the same ordinance, by which inspectors were granted unrestricted access to premises ...”
19. On 4 July 1994 the differently constituted Paris Court of Appeal held, inter alia:
“... the administrative investigation was carried out in accordance with section 15 of the aforementioned ordinance. By virtue of that provision, inspectors are authorised to require the production of, and to seize, documents of any kind that are likely to facilitate the accomplishment of their task, irrespective of whose hands the documents are in. They have a general right to inspect documents, reinforced by a power of seizure. Since no search took place in the course of the administrative investigation, the firms have no grounds for arguing that there has been interference with their private life or home in breach of Article 8 of the Convention ...”
20. The Court of Appeal fined the first applicant company FRF 5,000,000, the second FRF 3,000,000 and the third FRF 6,000,000. The applicant companies again appealed on points of law.
21. In a judgment of 4 June 1996 published in the BOCCRF, the Court of Cassation dismissed their appeal. In particular, it dismissed their complaint under Article 8 of the Convention, holding that “the administrative investigation ... [had] not give[n] rise to any searches or coercive measures”.
22. At the time of the impugned inspections (19 November 1985 and 15 October 1986), sections 15 and 16 of Ordinance no. 45-1484 of 30 June 1945 on the detection, prosecution and punishment of offences against legislation on trade and industry provided:
“The officials referred to in section 6 (subsections (1) and (2)) may require the production of, and may seize, documents of any kind ... that are likely to facilitate the accomplishment of their task, irrespective of whose hands the documents are in. They shall be entitled to take samples.
Officials from the Department of Internal Trade and Prices, the Revenue, Customs and Excise, the Fraud Office and the Weights and Measures Office may also, notwithstanding professional confidentiality, consult any documents kept by State, département and municipal authorities or offices, by public and quasi-public corporations, by institutions and bodies under State supervision and by firms and services granted a concession by the State, départements and municipal authorities.”
“... The officials referred to in section 6 shall have unrestricted access to shops if the latter do not constitute the trader's residence, in which case the search may only take place in accordance with the provisions of subsection 5, and to back-shops, offices, annexes, warehouses, premises used for processing, production, sales, dispatch or storage and, in general, to any premises, subject, in the case of residential premises, to the provisions of the fifth subsection of this section ...”
23. The relevant provisions of Ordinance no. 86-1243 of 1 December 1986 on free prices and competition, repealing Ordinance no. 45-1484 of 30 June 1945, read as follows:
“Inspectors may enter any premises, land or means of transport used for occupational purposes, may require the production of books, invoices and any other business documents and make copies thereof, and may obtain information and explanations by means of a summons or at the scene.
They may request the authority to which they are answerable to appoint an expert to draw up any necessary reports with the participation of all the parties.”
“Inspectors may make searches of any premises and seize documents solely in the context of investigations requested by the Minister for Economic Affairs or the Competition Council, and subject to judicial authorisation by an order of the President of the tribunal de grande instance within whose territorial jurisdiction the premises to be searched are situated, or a judge delegated by him. Where the premises are situated within the territorial jurisdiction of several courts and are all to be searched simultaneously, a single order may be issued by one of the relevant presidents.
The judge shall check that each application for leave made to him is well-founded; each request shall contain all information that may justify the search.
Searches and seizures shall be carried out under the authority and supervision of the judge who has authorised them. He shall designate one or more senior police officers [officiers de police judiciaire] with responsibility for being present at the operations and keeping him informed of their progress. Where they take place outside the territorial jurisdiction of his tribunal de grande instance, he shall issue a rogatory letter, for the purposes of such supervision, to the President of the tribunal de grande instance within whose jurisdiction the search is being made.
The judge may go to the scene during the operation. He may decide at any time to suspend or halt the search.
Against an order referred to in the first subsection of this section there shall lie only an appeal on points of law as provided in the Code of Criminal Procedure. Such an appeal shall not have suspensive effect.
Searches may not be commenced before 6 a.m. or after 9 p.m. They shall be made in the presence of the occupier of the premises or his representative.
Only the inspectors, the occupier of the premises or his representative and the senior police officer may inspect documents before they are seized.
Inventories shall be made and documents placed under seal, in accordance with Article 56 of the Code of Criminal Procedure.
The originals of the report and of the inventory shall be forwarded to the judge who ordered the search.
Items and documents that are no longer useful for establishing the truth shall be returned to the occupier of the premises.”
24. The domestic case-law at the material time may be summarised as follows.
In the field of taxation the Constitutional Council rejected section 89 of the Budget Act for 1984, concerning the investigation of income-tax and turnover-tax offences, holding, inter alia:
“While the needs of the Revenue's work may dictate that tax officials should be authorised to make investigations in private places, such investigations can only be conducted in accordance with Article 66 of the Constitution, which makes the judiciary responsible for protecting the liberty of the individual in all its aspects, in particular the inviolability of the home. Provision must be made for judicial participation in order that the judiciary's responsibility and supervisory power may be maintained in their entirety ...”
“...
I
With regard to the provisions referred to the Council, the significance of its decision is clear from a constitutional point of view ...
... the decision of 29 December 1983 must be examined ... in relation to recognition of the inviolability of the home as a constitutional principle.
... The question on which the Council was asked to give a ruling was not whether sections 7, 15, 16 and 17 of the 1945 ordinance were constitutional but whether the powers conferred by those provisions could be extended to tax officials in matters concerning direct taxation and VAT [value-added tax].
...
The issue under consideration was therefore wholly extraneous to the subject matter of the 1945 ordinance and there was no necessary link between the two types of instrument.
Obviously, that does not mean that the Constitutional Council indirectly, by implication, acknowledged the constitutionality of the 1945 ordinance. It merely ignored the question. But the principles it set forth in the rest of the decision show that certain rules laid down in the 1945 ordinance ... have become incompatible with constitutional law under the 1958 Constitution (see section II A. below).
...
II
The Constitutional Council's decision has had the effect of highlighting the fact that several provisions of existing statutes providing for purely administrative searches are incompatible with the constitutional principles it has laid down ...
A. The existing provisions for purely administrative searches are incompatible with the constitutional principles set out in the decision in issue.
(1) Such provisions, which are exceptions to the general law governing searches, are fairly numerous.
...
Article 64 of the Customs Code ... And Article 454 of the same Code ...
Articles L. 26 and L. 38 of the new Tax Code (Code of Tax Procedure) ...
Among the most recent provisions, particular mention should be made of those in the two ordinances of 30 June 1945, which serve as the foundation of the economic branch of the criminal law inherited from the Vichy regime.
...
Sections 5, 15 and 16 (referred to above) of Ordinance no. 45-1484 allow searches to be made, with a view to detecting economic offences, ... of any premises save residential ones, by numerous categories of officials acting alone, ... and of residential premises by any such officials who have been given special authorisation to that end by the Director-General of Competition and Consumer Affairs, and who must be accompanied by a local council officer or a senior police officer and operate during daytime hours only.
...
(2) It is quite obvious that all the provisions examined above are incompatible with the principles laid down in the Constitutional Council's decision.
In the great majority of cases there is no provision for any review by the ordinary courts (for example, in the Customs Code, the Code of Tax Procedure as regards searches of premises other than exclusively residential ones, the ordinance of 30 June 1945 in the same circumstances ...).”
25. A 1988 report by the Court of Cassation gives the following analysis of the relevant domestic law after the events in issue:
“The right of tax, customs and competition officials to make searches and seizures” (Study by Bernard Hatoux, judge of the Court of Cassation)
“... (b) The effect of the decision of 29 December 1983 is clarified by the provisions that were declared invalid.
... The Council's decision has another effect, as all legal writers have observed. The provisions of the 1945 ordinance ... would all have fallen foul of the Council if it had existed when they were promulgated. It was therefore implicitly established that they were incompatible with the Constitution. Although they could not be retrospectively declared invalid, it was no longer possible for them to be used as a reference in future.
That is all the truer as the government has seen in the Council's decision the same implication of invalidity, again noted by legal writers, with regard to the provisions creating the right to make searches in relation to indirect taxation, customs and economic offences, which have now been repealed and replaced by new ones designed to conform to the Council's requirements ...”
26. In its judgment of 21 September 1989 in Hoechst v. Commission (Joined Cases 46/87 and 227/88 [1989] European Court Reports (ECR) 2859), the Court of Justice of the European Communities (CJEC) held:
“17. Since the applicant has also relied on the requirements stemming from the fundamental right to the inviolability of the home, it should be observed that, although the existence of such a right must be recognised in the Community legal order as a principle common to the laws of the Member States in regard to the private dwellings of natural persons, the same is not true in regard to undertakings, because there are not inconsiderable divergences between the legal systems of the Member States in regard to the nature and degree of protection afforded to business premises against intervention by the public authorities.
18. No other inference is to be drawn from Article 8 ... of the ... Convention ... The protective scope of that article is concerned with the development of man's personal freedom and may not therefore be extended to business premises. Furthermore, it should be noted that there is no case-law of the European Court of Human Rights on that subject.
19. None the less, in all the legal systems of the Member States, any intervention by the public authorities in the sphere of private activities of any person, whether natural or legal, must have a legal basis and be justified on the grounds laid down by law, and, consequently, those systems provide, albeit in different forms, protection against arbitrary or disproportionate intervention. The need for such protection must be recognised as a general principle of Community law. In that regard, it should be pointed out that the Court has held that it has the power to determine whether measures of investigation taken by the Commission under the ECSC Treaty are excessive (judgment of 14 December 1962 in Joined Cases 5 to 11 and 13 to 15/62, San Michele and Others v. Commission [1962] ECR 449).”
The CJEC reaffirmed that position in two judgments of 17 October 1989, Dow Benelux v. Commission (Case 85/87 [1989] ECR 3137, paragraphs 28-30) and Dow Chemical Ibérica and Others v. Commission (Joined Cases 97-99/87 [1989] ECR 3165, paragraphs 14-16).
27. In its judgment of 20 April 1999 in Limburgse Vinyl Maatschappij NV and Others v. Commission (Joined Cases T-305/94, T-307/94, T-313/94 to T-316/94, T-318/94, T325/94, T-328/94, T-329/94 and T-335/94), the Court of First Instance of the European Communities held:
“398. ... the applicants argue that in the course of its investigations the Commission infringed the principle of inviolability of the home within the meaning of Article 8 of the ECHR as interpreted in the case-law of the European Court of Human Rights (Niemietz v. Germany, judgment of 16 December 1992, Series A no. 251-B), whose review is more extensive than that performed in the context of Community law ...
403. The Commission begins by arguing that the ECHR does not apply to Community competition procedures. ...
404. As to the merits of the plea, the Commission considers that the relevance of the case-law of the Court of Justice (Hoechst and Dow Benelux, cited above) is not affected by Article 8 of the ECHR as interpreted by the European Court of Human Rights.
Findings of the Court
...
(ii) The merits of the plea
417. For the reasons set out above ..., the plea must be understood as alleging infringement of the general principle of Community law ensuring protection against intervention by the public authorities in the sphere of private activities of any person, whether natural or legal, which are disproportionate or arbitrary (Hoechst, paragraph 19; Dow Benelux, paragraph 30; Joined Cases 97/87, 98/87 and 99/87 Dow Chemical Ibérica v. Commission [1989] ECR 3165, paragraph 16). ...
– The first part of the plea, concerning the validity of the formal acts relating to the investigations
419. ... In so far as the pleas and arguments put forward today by LVM and DSM are identical or similar to those put forward at that time by Hoechst, the Court sees no reason to depart from the case-law of the Court of Justice.
420. That case-law is, moreover, based on the existence of a general principle of Community law, as referred to above, which applies to legal persons. The fact that the case-law of the European Court of Human Rights concerning the applicability of Article 8 of the ECHR to legal persons has evolved since [the judgments cited above] therefore has no direct impact on the merits of the solutions adopted in those cases.”
VIOLATED_ARTICLES: 8


ITEMID: 001-22642
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: BRUSCO v. ITALY
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicant [Mr Umberto Brusco] is an Italian national, born in 1958 and living in Quarto Flegreo (Naples). He was represented before the Court by Mr A. Murante Perrotta, of the Naples Bar.
On 23 March 1992 the applicant, who had been accused of corruption and membership of a criminal organisation, was arrested and placed under house arrest. He was released on 17 July 1992.
On 19 February 1993 the Naples public prosecutor’s office requested that the applicant and numerous other people be committed for trial. In an order of 10 November 1993 the Naples investigating judge allowed the request.
The first hearing in the Naples District Court was held on 14 February 1994. After three further hearings – on 30 March and 6 and 9 April 1994 – a number of witnesses were questioned. On 20 April, 11 May and 8 June 1994 the proceedings were adjourned owing to strikes by lawyers. On 28 September 1994 the District Court, noting that the composition of its bench was not the same as at the previous hearings, directed that all the measures taken during the trial should be carried out again. Following a succession of hearings – on 27 September, 4, 11, 18, 23 and 25 October and 3 and 4 November 1995 – the parties presented their submissions.
In a judgment of 4 November 1995, the text of which was deposited with the registry on 11 June 1996, the Naples District Court sentenced the applicant to three years’ imprisonment for corruption. It acquitted him of membership of a criminal organisation.
The public prosecutor’s office and the applicant both appealed to the Naples Court of Appeal.
The first hearing was scheduled for 21 April 1997. On 5 May 1997 the case was adjourned, initially until 20 September 1997 because of a lawyers’ strike and subsequently until 10 November 1997 at the defendants’ request. On that day the proceedings were adjourned until 4 May 1998 as the lawyers were on strike.
On 3 November 1998 the defendants, noting that an appeal concerning an issue of relevance to the outcome of their case was pending before the Constitutional Court, applied for an adjournment. The Court of Appeal granted their application. The Constitutional Court delivered its judgment on 22 July 1999 and the applicant’s case was set down for hearing in the Naples Court of Appeal on 5 October 1999. Following numerous adjournments, the parties presented their submissions on 7 April 2000.
In a judgment of 7 April 2000, the text of which was deposited with the registry on 20 April 2000, the Naples Court of Appeal acquitted the applicant. That decision became final on 22 June 2000.
In a letter of 15 May 2001 the Registry of the Court informed the applicant that Law no. 89 of 24 March 2001 (“the Pinto Act”) had come into force on 18 April 2001, introducing into Italian legislation a remedy in respect of the excessive length of court proceedings. The applicant was at the same time invited to refer his complaint, in the first place, to the national courts.
In a fax of 29 May 2001 the applicant indicated that he did not wish to avail himself of the remedy provided by the Pinto Act and insisted that his application to the Court should be registered. He observed, in particular, that it had been lodged on 6 December 2000, before the publication and entry into force of the Pinto Act.
In passing Constitutional Amendment Act no. 2 of 23 November 1999, the Italian parliament decided to include the principle of a fair trial in the Constitution itself. The relevant parts of Article 111 of the Constitution are now worded as follows:
“1. Jurisdiction shall be exercised through fair proceedings, conducted in accordance with the law.
2. All proceedings shall be conducted in compliance with the principles of adversarial process and equality of arms before a neutral and impartial court. The right to be tried within a reasonable time shall be guaranteed by law.”
In order to ensure the effective application at domestic level of the “reasonable time” principle now enshrined in the Constitution, Parliament passed the Pinto Act on 24 March 2001. The relevant parts of the Act provide:
“1. Anyone sustaining pecuniary or non-pecuniary damage as a result of a violation of the Convention for the Protection of Human Rights and Fundamental Freedoms, ratified by Law no. 848 of 4 August 1955, on account of a failure to comply with the ‘reasonable time’ requirement in Article 6 § 1 of the Convention, shall be entitled to just satisfaction.
2. In determining whether there has been a violation, the court shall have regard to the complexity of the case and, in the light thereof, the conduct of the parties and of the judge deciding procedural issues, and also the conduct of any authority required to participate in or contribute to the resolution of the case.
3. The court shall assess the quantum of damage in accordance with Article 2056 of the Civil Code and shall apply the following rules:
(a) only damage attributable to the period beyond the reasonable time referred to in subsection 1 may be taken into account;
(b) in addition to the payment of a sum of money, reparation for non-pecuniary damage shall be made by giving suitable publicity to the finding of a violation.”
“1. Claims for just satisfaction shall be lodged with the court of appeal in which the judge sits who has jurisdiction under Article 11 of the Code of Criminal Procedure to try cases concerning members of the judiciary in the district where the case in which the violation is alleged to have occurred was decided or discontinued at the merits stage or is still pending.
2. The claim shall be made on an application lodged with the registry of the court of appeal by a lawyer holding a special authority containing all the information prescribed by Article 125 of the Code of Civil Procedure.
3. The application shall be made against the Minister of Justice where the alleged violation has taken place in proceedings in the ordinary courts, the Minister of Defence where it has taken place in proceedings before the military courts and the Finance Minister where it has taken place in proceedings before the tax commissioners. In all other cases, the application shall be made against the Prime Minister.
4. The court of appeal shall hear the application in accordance with Articles 737 et seq. of the Code of Civil Procedure. The application and the order setting the case down for hearing shall be served by the applicant on the defendant authority at its elected domicile at the offices of State Counsel [Avvocatura dello Stato] at least fifteen days prior to the date of the hearing before the Chamber.
5. The parties may apply to the court for an order for production of all or part of the procedural and other documents from the proceedings in which the violation referred to in section 2 is alleged to have occurred and they and their lawyers shall be entitled to be heard by the court in private if they attend the hearing. The parties may lodge memorials and documents up till five days before the date set for the hearing or until expiry of the time allowed by the court of appeal for that purpose on an application by the parties.
6. The court shall deliver a decision within four months after the application is lodged. An appeal shall lie to the Court of Cassation. The decision shall be enforceable immediately.
7. To the extent that resources permit, payment of compensation to those entitled shall commence on 1 January 2002.”
“A claim for just satisfaction may be lodged while the proceedings in which the violation is alleged to have occurred are pending or within six months from the date when the decision ending the proceedings becomes final. Claims lodged after that date shall be time-barred.”
“If the court decides to allow an application, its decision shall be communicated by the registry to the parties, to State Counsel at the Court of Audit to enable him to start an investigation into liability, and to the authorities responsible for deciding whether to institute disciplinary proceedings against the civil servants involved in the proceedings in any capacity.”
“1. Within six months after the entry into force of this Act, anyone who has lodged an application with the European Court of Human Rights in due time complaining of a violation of the ‘reasonable time’ requirement contained in Article 6 § 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms, ratified by Law no. 848 of 4 August 1955, shall be entitled to lodge a claim under section 3 hereof provided that the application has not by then been declared admissible by the European Court. In such cases, the application to the court of appeal must state when the application to the said European Court was made.
2. The registry of the relevant court shall inform the Minister for Foreign Affairs without delay of any claim lodged in accordance with section 3 and within the period laid down in subsection 1 of this section.”
“1. The financial cost of implementing this Act, which is put at 12,705,000,000 Italian lire from 2002, shall be met by releasing funds entered in the three-year budget 2001-03 in the chapter concerning the basic current-liability estimates from the ‘special fund’ in the year 2001 forecast of the Ministry of the Treasury, Economy and Financial Planning. Treasury deposits shall be set aside for that purpose.
2. The Ministry of the Treasury, Economy and Financial Planning is authorised to make the appropriate budgetary adjustments by decree.”


ITEMID: 001-78902
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF TROJANCZYK v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Nicolas Bratza
TEXT: 4. The applicant was born in 1951 and lives in Warszawa.
5. On 23 June 1993 the applicant lodged a petition for divorce with the Warsaw Regional Court.
6. On 14 December 1993 the Warsaw Regional Court decided to secure the payment of the applicant’s maintenance claims on the property of the applicant’s husband pending the outcome of the divorce proceedings. On 25 August 1995 it changed its previous decision on the issue of security for the payment of the maintenance claims. The defendant, the applicant’s husband, appealed. On 14 February 1996 the Warsaw Court of Appeal dismissed the appeal.
Hearings before the Regional Court were held on 4 November and 14 December 1993, 6 January, 15 February and 25 April 1994, 28 April, 2 August and 25 August 1995, 5 March 1997, 28 January, 7 April and 16 June 1999.
On 17 January 2001 the Warsaw Regional Court gave a judgment ruling on the divorce petition. The applicant was served with it on 12 March 2001.
The relevant domestic provisions and practice concerning the State’s liability for a tort committed by its official have been already cited in previous cases against Poland (see, for example, Rybczyńscy v. Poland, no. 3501/02, and Białas v. Poland, no. 69129/01).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-109098
LANGUAGEISOCODE: ENG
RESPONDENT: ARM
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: GURURYAN v. ARMENIA
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Kristina Pardalos;Luis López Guerra
TEXT: 1. The applicant, Ms Lermik Gururyan, is an Armenian national who was born in 1940 and lives in Hrazdan. She was represented before the Court by Mr A. Grigoryan, a lawyer practising in Yerevan. The Armenian Government were represented by their Agent, Mr G. Kostanyan, Representative of the Republic of Armenia at the European Court of Human Rights.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. The applicant’s late husband had worked for Hrazdanmash Closed Joint-Stock Company (hereafter “Hrazdanmash”), a company involved in manufacturing various machinery and equipment and whose majority shareholder is the State.
4. No salary was paid to the staff for the years 1998-2000, since Hrazdanmash was experiencing financial problems. In 2000 the majority of Hrazdanmash’s staff were ordered to take unpaid leave for an indefinite period.
5. On 17 May 2001 the relevant trade union instituted court proceedings against Hrazdanmash in the interests of the staff, seeking arrears for unpaid salary and other benefits.
6. On 2 July 2001 the Kotayk Regional Court granted the claim and ordered Hrazdanmash to pay a total of AMD 58,060,925, including AMD 327,073.73 to the applicant’s late husband. No appeal was lodged against this judgment which became final.
7. On 18 July 2001 the Regional Court issued the writ of execution (կատարողական թերթ).
8. On 23 July 2001 the bailiff instituted enforcement proceedings no. 738. In the course of these proceedings the bailiff decided to freeze Hrazdanmash’s property and bank accounts.
9. On 13 September 2001 the bailiff decided to stay enforcement proceedings no. 738 on the ground that bankruptcy proceedings had been instituted in respect of Hrazdanmash. It appears, however, that the enforcement proceedings were resumed on 19 October 2001 and that part of Hrazdanmash’s frozen property was sold at a public auction. On 4 February 2002 the Commercial Court decided to terminate the bankruptcy proceedings.
10. On 22 February 2002 the bailiff once again decided to stay enforcement proceedings no. 738, but later resumed them on 23 January 2003.
11. On 27 March 2003 the Government adopted decree no. 329-A, on the basis of which Hrazdanmash was allowed to sell its property. The proceeds of the sale were to be directed by the company towards paying off its debts in respect of the State budget.
12. On 7 July 2003 the bailiff stayed the enforcement proceedings on the basis of this decree.
13. On 23 July 2003 the Government adopted decree no. 955-A, according to which it decided to sell its shares in Hrazdanmash to a private company. The buyer in return undertook an obligation towards the State to make investments of various amounts, including creation of jobs.
14. It appears that enforcement proceedings no. 738 remained stayed on the basis of this decree for several years but were later resumed on 9 November 2006.
15. On 9 November 2002 the applicant’s late husband was ordered to take unpaid leave.
16. On an unspecified date thereafter he instituted proceedings against Hrazdanmash, seeking unpaid salary for the period between 1 April 2001 and 1 November 2002.
17. On 16 December 2002 the Kotayk Regional Court granted the claim and ordered Hrazdanmash to pay AMD 152,847 to the applicant’s late husband. No appeal was lodged against this judgment which became final.
18. On 8 January 2003 the Regional Court issued the writ of execution upon the request of the applicant’s late husband.
19. On 7 March 2003 the applicant’s late husband submitted the writ of execution to the bailiff.
20. On 10 March 2003 the bailiff instituted enforcement proceedings no. 353 on the basis of the above writ of execution.
21. On 14 May 2003 the applicant’s late husband requested the withdrawal of the writ of execution.
22. On 15 May 2003 the bailiff decided to discontinue the enforcement proceedings (ավարտել կատարողական վարույթը) on the ground that the applicant’s late husband had requested the withdrawal of the writ of execution.
23. On 2 December 2003 the applicant’s husband passed away.
24. On an unspecified date the applicant instituted proceedings against Hrazdanmash, claiming that the respondent owed her late husband AMD 429,955 in unpaid salary and seeking to be awarded that amount.
25. In her submissions made before the Kotayk Regional Court the applicant modified her claim, seeking a smaller amount, namely AMD 102,882, in view of the fact that a sum of money had already been awarded to her late husband by the judgment of 2 July 2001.
26. A representative of Hrazdanmash who was present at the hearing did not object to the applicant’s claim.
27. On 18 February 2005 the Kotayk Regional Court, having examined the materials of the case, including the applicant’s marriage certificate and the certificate concerning unpaid salary, found the applicant’s claim to be substantiated and ordered Hrazdanmash to pay AMD 102,882 to the applicant. No appeal was lodged against this judgment which became final.
28. It appears that the applicant did not request the Regional Court to issue a writ of execution in order to submit it to the bailiff for enforcement purposes.
29. On 2 May 2007 the application was communicated to the respondent Government.
30. On 30 July 2007 the Government submitted their observations.
31. On 25 September 2007 the applicant submitted her observations and just satisfaction claims.
32. On 29 November 2007 the Government submitted their comments on the applicant’s just satisfaction claims.
33. By a letter of 12 December 2007 the Government informed the Court that on 23 October 2007 the applicant had been recognised as her late husband’s heir. The Government submitted a copy of an inheritance certificate dated 23 October 2007 which had been issued upon the applicant’s application. The certificate was issued by the local notary in respect of the applicant and her three children and mentioned as the estate the deceased’s flat, as well as unpaid salary and other lump-sum payments owed to him by Hrazdanmash. The Government further stated that on 26 October 2007 the applicant had filed a request with the bailiff, seeking to reopen enforcement proceedings no. 353, which had been granted. As a result, all three judgments had been enforced and the applicant had received all the corresponding outstanding amounts.
34. By a letter of 4 February 2008 the applicant confirmed that the judgment debts had been paid to her on 29 November 2007.
35. For a summary of the relevant domestic provisions see the judgment in the case of Khachatryan v. Armenia (no. 31761/04, §§ 37-44, 1 December 2009).
36. According to Section 9 § 1, if a party to enforcement proceedings dies, the bailiff is obliged to replace him with a legal successor as determined by law, a court judgment or an agreement.
37. According to Section 41 § 1 (1), the bailiff shall discontinue the enforcement proceedings if the creditor has requested the withdrawal of the writ of execution.
38. According to Section 42 § 1 (2), the bailiff shall terminate the enforcement proceedings (կարճել կատարողական վարույթը) if the creditor waives his claim for recovery of the judgment award.
39. According to Section 42 § 1 (4), the bailiff shall terminate the enforcement proceedings if the creditor or the debtor has died and the claims or the debts established by the judicial act may not be transferred to his legal successor.
40. Article 197 provides that, if an employee dies, his outstanding salary and other similar payments shall be paid to a family member, provided that the latter submits the death certificate and other necessary documents certifying the family link within six months after the date of the person’s death.
41. According to Articles 1186, 1188, 1226 and 1227, the estate encompasses the property belonging to the testator on the date of opening the inheritance, including funds, securities and proprietary rights and obligations. The inheritance shall be opened on the date of a person’s death. An heir accepts inheritance by submitting an application on accepting the inheritance or on receiving an inheritance certificate from the notary of the district where the inheritance was opened. Inheritance can be accepted within six months after the date of opening the inheritance.
42. According to Article 1228, the court may recognise the acceptance of inheritance by an heir who has missed the prescribed time-limit, if it finds the reasons for missing the time-limit to be valid. An heir may accept the inheritance after the expiry of the prescribed time-limit without applying to the courts, if all other heirs who have accepted the inheritance agree. Such agreement signed by the heirs must be notarised. Based on such agreement, the notary shall annul the previous inheritance certificate and issue a new one.
43. According to Article 1249, family members of the deceased, as well as his dependents who are incapacitated, have the right to receive the outstanding salary, pensions, benefits and compensation for damage to life or health which, for whatever reason, were not paid to the deceased in his lifetime. Requests to receive these payments must be submitted within six months after the date of opening the inheritance. If no such claim is submitted within the prescribed time-limit, the relevant sums shall be included in the estate and be inherited under the general conditions prescribed by this Code.


ITEMID: 001-101152
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF A. v. CROATIA
IMPORTANCE: 2
CONCLUSION: Violation of Art. 8;Remainder inadmissible;Non-pecuniary damage - award
JUDGES: Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 41. The relevant parts of the Criminal Code (Kaznenei zakon Republike Hrvatske, Official Gazette nos. 110/1997, 28/1998, 50/2000, 129/2000, 51/2001, 11/2003, 105/2004, 84/2005 and 71/2006) read as follows:
“A security measure of compulsory psychiatric treatment may be imposed only as regards a perpetrator who, at the time of committing a criminal offence, suffered from significantly diminished responsibility [and] where there is a risk that the factors giving rise to the state [of diminished responsibility] might incite the future commission of a further criminal offence.
A security measure of compulsory psychiatric treatment may be imposed, under the conditions set out in paragraph 1 of this Article, during the execution of a prison sentence, in lieu of a prison sentence or together with a suspended sentence.
Compulsory psychiatric treatment shall be imposed for as long as the grounds for its application exist, but [it shall not] in any case exceed the prison term ... Compulsory psychiatric treatment shall not under any circumstances exceed three years.
...”
“Anyone who inflicts bodily injury on another person or impairs another person's health shall be fined or sentenced to imprisonment for a term not exceeding one year.”
“Criminal proceedings for the offence of inflicting bodily injury (Article 98) shall be instituted by means of private prosecution.”
“(1) Anyone who threatens another person with harm in order to intimidate or disturb that person shall be fined up to one hundred and fifty monthly wages or sentenced to imprisonment for a term not exceeding six months.
(2) Anyone who seriously threatens to kill another person ... shall be fined or sentenced to imprisonment for a term not exceeding one year.
...
(4) Criminal proceedings for the criminal offences defined in paragraphs 1 and 2 of this Article shall be instituted upon [a private] application.”
“A family member who by an act of violence, ill-treatment or particularly contemptuous behaviour places another family member in a humiliating position shall be sentenced to imprisonment for a term of between six months and five years.”
42. The relevant provisions of the Protection against Domestic Violence Act (Official Gazette no. 116/2003, Zakon o zaštiti of nasilja u obitelji) provide:
“This Act defines the term domestic violence, persons considered as family members within the meaning of this Act, the manner of protection of family members and the types and purpose of minor offences sanctions.”
“(1) The provisions of the Minor Offences Act are to be applied in respect of minor offences in the sphere of domestic violence, unless otherwise provided by this Act.
(2) All proceedings instituted under this Act shall be urgent.”
“Domestic violence is:
– any use of physical force or psychological pressure against a person's integrity;
– any other act by a family member which might cause physical or mental suffering;
– causing fear, fear for personal safety or harm to a person's dignity;
– physical assault irrespective of whether it has caused injury;
– verbal assaults, insults, cursing, calling names or other forms of serious harassment;
– sexual harassment;
– stalking and all other forms of harassment;
– illegal isolation of a person or restricting his or her freedom of movement or communication with others;
– causing damage to or destruction of property or attempting to do so.”
“(1) Minor offences sanctions for protection from domestic violence are fines, imprisonment and protective measures.
...”
“A court may order the following protective measures against the perpetrator of an act of domestic violence
(a) compulsory psycho-social treatment;
(b) prohibiting access to the victim's proximity;
(c) prohibition on harassing and stalking the victim of violence;
(d) removal from flat, house or other living premises;
(e) providing protection to a person exposed to violence;
(f) compulsory treatment for addiction;
(g) seizure of objects intended for or used in the commission of a minor offence.”
“The purpose of protective measures is to prevent domestic violence, to secure the necessary protection of the health and safety of a person exposed to violence and to remove the circumstances favourable to or capable of inciting the commission of a further minor offence.”
“(1) A protective measure of obligatory psycho-social treatment may be imposed in respect of the perpetrator of an act of domestic violence in order to put an end to the violent behaviour of the perpetrator or where there is a risk that the perpetrator might reoffend against persons under section 3 of this Act.
(2) The measure under paragraph 1 of this section shall remain in place as long as the reasons for which it has been imposed exist, but for no longer than six months.
...”
“(1) A protective measure prohibiting access to the victim's proximity may be imposed against a person who has committed an act of domestic violence where there is a risk that he or she might reoffend.
(2) A decision imposing a measure prohibiting access to the victim's proximity shall define the places or areas covered as well as the distance of access.
(3) The duration of a measure under paragraph one of this section shall not be shorter than one month or exceed one year.
...”
“(1) A protective measure prohibiting the harassing and stalking of a victim of violence may be ordered against a person who has committed violence by harassing or stalking and where there is a danger of his or her reoffending against persons under section 3 of this Act.
(2) The measure under paragraph 1 of this section shall be ordered for a period from one month to one year.
...”
“(1) A protective measure of providing protection to a person exposed to violence may be ordered in respect of a person exposed to violence for his or her physical protection and to enable him or her to take from home his or her personal documents, clothes, money or other items necessary for everyday life.
(2) The measure under paragraph 1 of this section shall include an order to the police to escort the person exposed to violence and protect that person while he or she takes his or her personal items and to escort him or her while leaving the home.
(3) The duration of this measure shall be defined by the duration of implementation of the court order.”
“(1) Protective measures may be ordered at the request of a person exposed to violence or of the police, or of the court's own motion.
(2) The protective measures under section 7 (a) and (g) shall be ordered by the court of its own motion.
(3) The protective measures under this Act shall be ordered for a period which shall not be less than one month, nor shall it exceed two years from the date when a decision in minor offence proceedings has become final or from the date of completion of a prison term, if not otherwise provided under this Act.”
“(1) The protective measures under section 7 (b), (c), (d) and g) of this Act may be ordered independently even where no other sanction has been imposed.
(2) The protective measures under paragraph 1 of this section may be imposed at the request of a person who has lodged a request for minor offences proceedings to be instituted, in order to remove a direct risk to the life of persons exposed to violence or other family members.
(3) A court shall give a decision under paragraphs 1 and 2 of this section within 48 hours.
...”
“(1) The perpetrators of domestic violence are obliged to comply with the protective measure [ordered against them].
(2) Persons who do not comply with the protective measure ordered against them shall be punished for a minor offence by a fine which may not be less than 3,000 Croatian kuna or by at least forty days' imprisonment.
...”
43. The relevant part of the Minor Offences Act (Zakon o Prekršajima, Official Gazette no. 88/2002) reads:
“A fine may be prescribed in respect of an individual in a minimum amount of 300 Croatian kuna and a maximum amount of 10,000 Croatian kuna ...”
“The prison term may be prescribed for a minimum duration of three days and a maximum of thirty days. On an exceptional basis, in respect of the most serious minor offences, it may be prescribed for a maximum duration of sixty days.
...”
44. The relevant provisions of the Enforcement of Prison Sentences Act (Zakon o izvršavanju kazne zatvora, Official Gazette nos. 128/1999 and 190/2003) read as follows:
“The main purpose of a prison term, apart from humane treatment and respect for the personal integrity of the person serving the prison term, ... is the development of his or her capacity to live after release in accordance with the laws and general customs of society.”
(1) The individual programme for the enforcement of a prison term (hereinafter “the enforcement programme”) consists of a combination of pedagogical, working, leisure, health, psychological and safety activities and measures aimed at adapting the time spent in detention to the character traits and needs of the prisoner and the type and possibilities of the particular penitentiary or prison. The enforcement programme shall be designed with a view to fulfilling the purposes of a prison term under section 7 of this Act.
(2) The enforcement programme shall be designed by the prison governor on a proposal from the penitentiary or prison expert team...
(3) The enforcement programme shall contain information on ... special procedures (... psychological and psychiatric assistance ... special security measures...)
...”
45. In its Recommendation Rec(2002)5 of 30 April 2002 on the protection of women against violence, the Committee of Ministers of the Council of Europe stated, inter alia, that member States should introduce, develop and/or improve where necessary national policies against violence based on maximum safety and protection of victims, support and assistance, adjustment of the criminal and civil law, raising of public awareness, training for professionals confronted with violence against women and prevention.
46. The Committee of Ministers recommended, in particular, that member States should penalise serious violence against women such as sexual violence and rape and abuse of the vulnerability of pregnant, defenceless, ill, disabled or dependent victims, as well as penalising any abuse of position by the perpetrator. The Recommendation also states that member States should ensure that all victims of violence are able to institute proceedings, make provisions to ensure that criminal proceedings can be initiated by the public prosecutor, encourage prosecutors to regard violence against women as an aggravating or decisive factor in deciding whether or not to prosecute in the public interest, ensure where necessary that measures are taken to protect victims effectively against threats and possible acts of revenge and take specific measures to ensure that children's rights are protected during proceedings.
47. With regard to violence within the family, the Committee of Ministers recommended that Member states should classify all forms of violence within the family as criminal offences and envisage the possibility of taking measures in order, inter alia, to enable the judiciary to adopt interim measures aimed at protecting victims, to ban the perpetrator from contacting, communicating with or approaching the victim, or residing in or entering defined areas, to penalise all breaches of the measures imposed on the perpetrator and to establish a compulsory protocol for operation by the police, medical and social services.
VIOLATED_ARTICLES: 8