ITEMID: 001-61188
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: GRANDCHAMBER
DATE: 2003
DOCNAME: CASE OF HATTON AND OTHERS v. THE UNITED KINGDOM
IMPORTANCE: 1
CONCLUSION: No violation of Art. 8;Violation of Art. 13;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
JUDGES: Brian Kerr;Luzius Wildhaber;Paul Mahoney
TEXT: 11. Ruth Hatton was born in 1963. Between 1991 and 1997 she lived in East Sheen with her husband and two children. According to information supplied by the Government, her house was 11.7 km from the end of the nearest runway at Heathrow and fell within a daytime noise contour where the level of disturbance from aircraft noise was between 57 and 60 dBa Leq. According to the Government, dBA Leq measure the average degree of community annoyance from aircraft noise over a sixteen-hour daytime period and studies have shown that in areas where the daytime noise exposure is below 57 dBA Leq there is no significant community annoyance. The Government state that a daytime noise contour of 57 dBA Leq represents a low level of annoyance; 63 dBA Leq represent a moderate level of annoyance; 69 dBA Leq correspond to a high level of annoyance; and 72 dBA Leq represent a very high level of annoyance.
12. According to Ms Hatton, in 1993 the level of night noise increased and she began to find noise levels to be “intolerable” at night. She believed that the noise was greater when aircraft were landing at Heathrow from the east. When this happened, Ms Hatton was unable to sleep without ear plugs and her children were frequently woken up before 6 a.m., and sometimes before 5 a.m. If Ms Hatton did not wear ear plugs, she would be woken by aircraft activity at around 4 a.m. She was sometimes able to go back to sleep, but found it impossible to go back to sleep once the “early morning bombardment” started which, in the winter of 1996/1997, was between 5 a.m. and 5.30 a.m. When she was woken in this manner, Ms Hatton tended to suffer from a headache for the rest of the day. When aircraft were landing from the west the noise levels were lower, and Ms Hatton's children slept much better, generally not waking up until after 6.30 a.m. In the winter of 1993/1994, Ms Hatton became so run down and depressed by her broken sleep pattern that her doctor prescribed anti-depressants. In October 1997, she moved with her family to Kingston-upon-Thames in order to get away from the aircraft noise at night.
13. Peter Thake was born in 1965. From 1990 until 1998, he lived in Hounslow with his partner. His home in Hounslow was situated 4.4 km from Heathrow Airport and slightly to the north of the southern flight path, within a daytime noise contour of between 63 and 66 dBA Leq, according to the Government.
14. Mr Thake claims that in about 1993 the level of disturbance at night from aircraft noise increased notably and he began to be woken or kept awake at night by aircraft noise. Mr Thake found it particularly difficult to sleep in warmer weather, when open windows increased the disturbance from aircraft noise, and closed windows made it too hot to sleep, and he found it hard to go back to sleep after being woken by aircraft noise early in the morning. He was sometimes kept awake by aeroplanes flying until midnight or 1 a.m. and then woken between 4 a.m. and 5 a.m. Mr Thake was also sometimes woken by aeroplanes flying at odd hours in the middle of the night, for example when diverted from another airport. In 1997, Mr Thake became aware that he could complain to the Heathrow Noise Line about aircraft noise if he made a note of the time of the flight. By 30 April 1997, Mr Thake had been sufficiently disturbed to note the time of a flight, and made a complaint to the Heathrow Noise Line on nineteen occasions. He remained in Hounslow until February 1998 because his family, friends and place of work were in the Heathrow area, but moved to Winchester, in Hampshire, when a suitable job opportunity arose, even though it meant leaving his family and friends, in order to escape from the aircraft noise, which was “driving [him] barmy”.
15. John Hartley was born in 1948 and has lived with his wife at his present address in Richmond since 1989. According to the information provided by the Government, Mr Hartley's house is 9.4 km from the end of the nearest Heathrow runway and, situated almost directly under the southern approach to the airport, within a daytime noise contour area of between 60 and 63 dBA Leq. The windows of the house are double-glazed.
16. From 1993, Mr Hartley claims to have noticed a “huge” increase in the disturbance caused by flights between 6 a.m. and 6.30 a.m. (or 8 a.m. on Sundays). He states that the British Airports Authority did not operate a practice of alternation (using only one runway for landings for half the day, and then switching landings to the other runway) during this period as it did during the day, and the airport regularly had aircraft landing from the east on both runways. When the wind was blowing from the west and aeroplanes were landing from the east, which was about 70% of the time, aircraft noise would continue until about midnight, so that Mr Hartley was unable to go to sleep earlier than then. He would find it impossible to sleep after 6 a.m. on any day of the week, and was usually disturbed by aircraft noise at about 5 a.m., after which he found he could not go back to sleep. When the aeroplanes were landing from the west, Mr Hartley was able to sleep.
17. Philippa Edmunds was born in 1954 and lives with her husband and two children in East Twickenham. She has lived at her present address since 1992. According to information supplied by the Government, Ms Edmund's house is 8.5 km from the end of the nearest Heathrow runway and approximately 1 km from the flight path, within a daytime noise contour area of under 57 dBA Leq.
18. The applicant claims that before 1993 she was often woken by aircraft noise at around 6 a.m. From 1993, she tended to be woken at around 4 a.m. In 1996, Ms Edmunds and her husband installed double-glazing in their bedroom to try to reduce the noise. Although the double-glazing reduced the noise, Ms Edmunds continued to be woken by aircraft. She suffered from ear infections in 1996 and 1997 as a result of wearing ear plugs at night and, although she was advised by a doctor to stop using them, she continued to do so in order to be able to sleep. Ms Edmunds was also concerned about the possible long-term effects of using ear plugs, including an increased risk of tinnitus. Ms Edmunds's children both suffered from disturbance by aircraft noise.
19. John Cavalla was born in 1925. From 1970 to 1996 he lived with his wife in Isleworth, directly under the flight path of the northern runway at Heathrow Airport. According to information supplied by the Government, the applicant's house was 6.3 km from the end of the nearest Heathrow runway, within a daytime noise contour of between 63 and 66 dBA Leq.
20. The applicant claims that in the early 1990s the noise climate deteriorated markedly, partly because of a significant increase in traffic, but mainly as a result of aircraft noise in the early morning. Mr Cavalla considers that air traffic increased dramatically between 6 a.m. and 7 a.m. as a result of the shortening of the night quota period. He found that, once woken by an aircraft arriving at Heathrow Airport in the early morning, he was unable to go back to sleep.
21. In 1996, Mr Cavalla and his wife moved to Sunbury in order to get away from the aircraft noise. According to the Government, the new house is 9.5 km from Heathrow, within a daytime noise contour area of under 57 dBA Leq. After moving house, Mr Cavalla did not live under the approach tracks for landing aircraft, and aircraft used the departure route passing over his new home only very rarely at night. Consequently, he was only very rarely exposed to any night-time aircraft noise following his move.
22. Jeffray Thomas was born in 1928 and lives in Kew with his wife and two sons, and the wife and son of one of those sons. The family have lived at their present address since 1975, in a house lying between the north and south Heathrow flight paths. According to the Government, it is 10.7 km from Heathrow, within a noise contour area of 57 to 60 dBA Leq. Aircraft pass overhead on seven or eight days out of every ten when the prevailing wind is from the west.
23. Mr Thomas claims to have noticed a sudden increase in night disturbance in 1993. He complains of being woken at 4.30 a.m., when three or four large aircraft tended to arrive within minutes of each other. Once he was awake, one large aeroplane arriving every half hour was sufficient to keep him awake until 6 a.m. or 6.30 a.m., when the aeroplanes started arriving at frequencies of up to one a minute until about 11 p.m.
24. Richard Bird was born in 1933 and lived in Windsor for thirty years until he retired in December 1998. His house in Windsor was directly under the westerly flight path to Heathrow Airport. According to the Government, it was 11.5 km from Heathrow, within a daytime noise contour area of 57 to 60 dBA Leq.
25. The applicant claims that in recent years, and particularly from 1993, he and his wife suffered from intrusive aircraft noise at night. Although Mr Bird observed that both take-offs and landings continued later and later into the evenings, the main problem was caused by the noise of early morning landings. He stated that on very many occasions he was woken at 4.30 a.m. or 5 a.m. by incoming aircraft, and was then unable to get back to sleep, and felt extremely tired later in the day. Mr Bird retired in December 1998 and moved with his wife to Wokingham, in Surrey, specifically to get away from the aircraft noise which was “really getting on [his] nerves”.
26. Tony Anderson was born in 1932 and has lived since 1963 in Touchen End, under the approach to runway 09L at Heathrow Airport and, according to the Government, 17.3 km from the end of the nearest runway, within a daytime noise contour area of under 57 dBA Leq.
According to the applicant, by 1994 he began to find that his sleep was being disturbed by aircraft noise at night, and that he was being woken at 4.15 a.m. or even earlier by aircraft coming in from the west to land at Heathrow Airport.
27. The dBA Leq noise contour figures supplied by the Government and referred to above measure levels of annoyance caused by noise during the course of an average summer day. The Government state that it is not possible to map equivalent contours for night noise disturbance, because there is no widely accepted scale or standard with which to measure night-time annoyance caused by aircraft noise. However, the Government claim that the maximum “average sound exposure” levels, in decibels (dBA), suffered by each applicant as a result of the seven different types of aircraft arriving at Heathrow before 6 a.m. each morning is as follows: Ms Hatton – 88 dBA; Mr Thake – 88.8 dBA; Mr Hartley – 89.9 dBA; Ms Edmunds – 83.4 dBA; Mr Cavalla (at his previous address) – 94.4 dBA; Mr Thomas – 88.7 dBA; Mr Bird – 87.8 dBA; and Mr Anderson – 84.1 dBA.
The Government further claim that the average “peak noise event” levels, that is the maximum noise caused by a single aircraft movement, suffered by each applicant at night are as follows: Mrs Hatton – 76.3 dBA; Mr Thake – 77.1 dBA; Mr Hartley – 78.9 dBA; Ms Edmunds – 70 dBA; Mr Cavalla (at his previous address) – 85 dBA; Mr Thomas – 77.2 dBA; Mr Bird – 76 dBA; Mr Anderson – 71.1 dBA.
The Government claim that research commissioned before the 1993 review of night restrictions indicated that average outdoor sound exposure levels of below 90 dBA, equivalent to peak noise event levels of approximately 80 dBA, were unlikely to cause any measurable increase in overall rates of sleep disturbance experienced during normal sleep. The applicants, however, refer to World Health Organisation “Guidelines for Community Noise”, which gave a guideline value for avoiding sleep disturbance at night of a single noise event of 60 dBA.
28. Heathrow Airport is the busiest airport in Europe, and the busiest international airport in the world. It is used by over 90 airlines, serving over 180 destinations world-wide. It is the United Kingdom's leading port in terms of visible trade.
29. Restrictions on night flights at Heathrow Airport were introduced in 1962 and have been reviewed periodically, most recently in 1988, 1993 and 1998.
30. Between 1978 and 1987, a number of reports into aircraft noise and sleep disturbance were published by or on behalf of the Civil Aviation Authority.
31. A Consultation Paper was published by the United Kingdom government in November 1987 in the context of a review of the night restrictions policy at Heathrow. The Consultation Paper stated that research into the relationship between aircraft noise and sleep suggested that the number of movements at night could be increased by perhaps 25% without worsening disturbance, provided levels of dBA Leq were not increased.
32. It indicated that there were two reasons for not considering a ban on night flights: firstly, that a ban on night flights would deny airlines the ability to plan some scheduled flights in the night period, and to cope with disruptions and delays; secondly, that a ban on night flights would damage the status of Heathrow Airport as a twenty-four-hour international airport (with implications for safety and maintenance and the needs of passengers) and its competitive position in relation to a number of other European airports.
33. From 1988 to 1993, night flying was regulated solely by means of a limitation on the number of take-offs and landings permitted at night. The hours of restriction were as follows:
Summer 11.30 p.m. to 6 a.m. weekdays, 11.30 p.m. to 6 a.m. Sunday landings, 11.30 p.m. to 8 a.m. Sunday take-offs;
Winter 11.30 p.m. to 6.30 a.m. weekdays, 11.30 p.m. to 8 a.m. Sunday take-offs and landings.
34. In July 1990, the Department of Transport commenced an internal review of the restrictions on night flights. A new classification of aircraft and the development of a quota count system were the major focus of the review. As part of the review, the Department of Transport asked the Civil Aviation Authority to undertake further objective study of aircraft noise and sleep disturbance. The objectives of the review included “to continue to protect local communities from excessive aircraft noise at night” and “to ensure that the competitive influences affecting UK airports and airlines and the wider employment and economic implications are taken into account”.
35. The fieldwork for the study was carried out during the summer of 1991. Measurements of disturbance were obtained from 400 subjects living in the vicinity of Heathrow, Gatwick, Stansted and Manchester Airports. The findings were published in December 1992 as the “Report of a field study of aircraft noise and sleep disturbance” (“the 1992 sleep study”). It found that, once asleep, very few people living near airports were at risk of any substantial sleep disturbance due to aircraft noise and that, compared with the overall average of about eighteen nightly awakenings without any aircraft noise, even large numbers of noisy night-time aircraft movements would cause very little increase in the average person's nightly awakenings. It concluded that the results of the field study provided no evidence to suggest that aircraft noise was likely to cause harmful after-effects. It also emphasised, however, that its conclusions were based on average effects, and that some of the subjects of the study (2 to 3%) were over 60% more sensitive than average.
36. In January 1993, the government published a Consultation Paper regarding a proposed new scheme for regulating night flights at the three main airports serving London: Heathrow, Gatwick and Stansted. The Consultation Paper set up four objectives of the review being undertaken (so far as Heathrow was concerned): to revise and update the existing arrangements; to introduce a common night flights regime for the three airports; to continue to protect local communities from excessive aircraft noise levels at night; and to ensure that competitive influences and the wider employment and economic implications were taken into account. In a section entitled “Concerns of local people”, the Consultation Paper referred to arguments that night flights should be further restricted or banned altogether. In the authors' view, the proposals struck a fair balance between the different interests and did “protect local people from excessive aircraft noise at night”. In considering the demand for night flights, the Consultation Paper made reference to the fact that, if restrictions on night flights were imposed in the United Kingdom, certain flights would not be as convenient or their costs would be higher than those that competitors abroad could offer, and that passengers would choose alternatives that better suited their requirements.
37. It also stated that various foreign operators were based at airports with no night restrictions, which meant that they could keep prices down by achieving a high utilisation of aircraft, and that this was a crucial factor in attracting business in what was a highly competitive and price-sensitive market.
38. Further, the Consultation Paper stated that both regular and charter airlines believed that their operations could be substantially improved by being allowed more movements during the night period, especially landings.
It also indicated that charter companies required the ability to operate in the night period, as they operated in a highly competitive, price-sensitive market and needed to contain costs as much as possible. The commercial viability of their business depended on high utilisation of their aircraft, which typically required three rotations a day to nearer destinations, and this could only be fitted in by using movements at night.
39. Finally, as regards night flights, the Consultation Paper referred to the continuing demand for some all-cargo flights at night carrying mail and other time-sensitive freight such as newspapers and perishable goods, and pointed to the fact that all-cargo movements were banned, whether arriving or departing, for much of the day at Heathrow Airport.
40. The Consultation Paper referred to the 1992 sleep study, noting that it had found that the number of disturbances caused by aircraft noise was so small that it had a negligible effect on overall normal disturbance rates, and that disturbance rates from all causes were not at a level likely to affect people's health or well-being.
41. The Consultation Paper further stated that, in keeping with the undertaking given in 1988 not to allow a worsening of noise at night, and ideally to reduce it, it was proposed that the quota for the next five years based on the new system should be set at a level such as to keep overall noise levels below those in 1988.
42. A considerable number of responses to the Consultation Paper were received from trade and industry associations with an interest in air travel (including the International Air Transport Association (IATA), the Confederation of British Industry and the London and Thames Valley Chambers of Commerce) and from airlines, all of which emphasised the economic importance of night flights. Detailed information and figures were provided by the associations and the airlines to support their responses.
43. On 6 July 1993 the Secretary of State for Transport announced his intention to introduce, with effect from October 1993, a quota system of night flying restrictions, the stated aim of which was to reduce noise at the three main London airports, which included Heathrow (“the 1993 Scheme”).
44. The 1993 Scheme introduced a noise quota scheme for the night quota period. Under the noise quota scheme each aircraft type was assigned a “quota count” between 0.5 QC (for the quietest) and 16 QC (for the noisiest). Each airport was then allotted a certain number of quota points, and aircraft movements had to be kept within the permitted points total. The effect of this was that, under the 1993 Scheme, rather than a maximum number of individual aircraft movements being specified, aircraft operators could choose within the noise quota whether to operate a greater number of quieter aeroplanes or a lesser number of noisier aeroplanes. The system was designed, according to the 1993 Consultation Paper, to encourage the use of quieter aircraft by making noisier types use more of the quota for each movement.
45. The 1993 Scheme defined “night” as the period between 11 p.m. and 7 a.m., and further defined a “night quota period” from 11.30 p.m. to 6 a.m., seven days a week, throughout the year, when the controls were strict. During the night, operators were not permitted to schedule the noisier types of aircraft to take off (aircraft with a quota count of 8 QC or 16 QC) or to land (aircraft with a quota count of 16 QC). During the night quota period, aircraft movements were restricted by a movements limit and a noise quota, which were set for each season (summer and winter).
46. The 1993 Consultation Paper had proposed a rating of 0 QC for the quietest aircraft. This would have allowed an unlimited number of these aircraft to fly at night, and the government took account of objections to this proposal in deciding to rate the quietest aircraft at 0.5 QC. Otherwise, the 1993 Scheme was broadly in accordance with the proposals set out in the 1993 Consultation Paper.
47. The local authorities for the areas around the three main London airports sought judicial review of the Secretary of State's decision to introduce the 1993 Scheme, making four consecutive applications for judicial review and appealing twice to the Court of Appeal (see paragraphs 80-83 below). As a result of the various judgments delivered by the High Court and Court of Appeal, the government consulted on revised proposals in October and November 1993; commissioned a study by ANMAC (the Aircraft Noise Monitoring Advisory Committee of the Department of the Environment, Transport and the Regions (DETR) formerly the Department of Transport) in May 1994 into ground noise at night at Heathrow, Gatwick and Stansted Airports; added to the quota count system an overall maximum number of aircraft movements; issued a further Consultation Paper in March 1995 and issued a supplement to the March 1995 Consultation Paper in June 1995.
48. The June 1995 supplement stated that the Secretary of State's policies and the proposals based on them allowed more noise than was experienced from actual aircraft movements in the summer of 1988, and acknowledged that this was contrary to government policy, as expressed in the 1993 Consultation Paper. As part of the 1995 review of the 1993 Scheme, the government reviewed the Civil Aviation Authority reports on aircraft noise and sleep disturbance, including the 1992 sleep study. The DETR prepared a series of papers on night arrival and departure statistics at Heathrow, Gatwick and Stansted Airports, scheduling and curfews in relation to night movements, runway capacity between 6 a.m. and 7 a.m., Heathrow night arrivals for four sample weeks in 1994, and Heathrow night departures for four sample weeks in 1994. The DETR also considered a paper prepared by Heathrow Airport Limited on the implications of a prohibition on night flights between 12 midnight and 5.30 a.m.
49. On 16 August 1995 the Secretary of State for Transport announced that the noise quotas and all other aspects of the night restrictions regime would remain as previously announced. In July 1996, the Court of Appeal confirmed the lawfulness of the 1993 Scheme, as it had been amended (see paragraphs 82-83 below).
50. The movement limits for Heathrow under the 1993 Scheme, introduced as a consequence of the legal challenges in the domestic courts, were set at 2,550 per winter season from 1994/1995 to 1997/1998, and 3,250 per summer season from 1995 to 1998 (the seasons being deemed to change when the clocks changed from Greenwich Mean Time (GMT) to British Summer Time (BST)). The noise quotas for Heathrow up to the summer of 1998 were set at 5,000 for each winter season and 7,000 for each summer season. Flights involving emergencies were excluded from the restrictions. The number of movements permitted during the night quota period (i.e. from 11.30 p.m. to 6 a.m.) remained at about the same level as between 1988 and 1993. At the same time, the number of movements permitted during the night period (i.e. from 11 p.m. to 7 a.m.) increased under the 1993 Scheme due to the reduction in the length of the night quota period.
51. In September 1995, a trial was initiated at Heathrow Airport of modified procedures for early morning landings (those between 4 a.m. and 6 a.m.). The aim of the trial, which was conducted by National Air Traffic Services Limited on behalf of the DETR, was to help alleviate noise over parts of central London in the early morning. An interim report, entitled “Assessment of revised Heathrow early mornings approach procedures trial”, was published in November 1998.
52. In December 1997, a study, commissioned by the DETR and carried out by the National Physical Laboratory gave rise to a report, “Night noise contours: a feasibility study”, which was published the same month. The report contained a detailed examination of the causes and consequences of night noise, and identified possible areas of further research. It concluded that there was not enough research evidence to produce “scientifically robust night contours that depict levels of night-time annoyance”.
53. In 1998, the government conducted a two-stage consultation exercise on night restrictions at Heathrow, Gatwick and Stansted Airports. In February 1998, a Preliminary Consultation Paper on night restrictions at Heathrow, Gatwick and Stansted was published. The Preliminary Consultation Paper stated that most night movements catered primarily for different needs from those that took place during the daytime, and set out reasons for allowing night flights. These were essentially the same as those given in the 1993 Consultation Paper.
54. In addition, the Preliminary Consultation Paper referred to the fact that air transport was one of the fastest growing sectors of the world economy and contained some of the United Kingdom's most successful firms. Air transport facilitated economic growth, world trade, international investment and tourism, and was of particular importance to the United Kingdom because of its open economy and geographical position. The Consultation Paper went on to say that permitting night flights, albeit subject to restrictions, at major airports in the United Kingdom had contributed to this success.
55. The government set movement limits and noise quotas for winter 1998/99 at the same level as for the previous winter, in order to allow adequate time for consultation.
56. The British Air Transport Association (BATA) commissioned a report from Coopers & Lybrand into the economic costs of maintaining the restrictions on night flights. The report was published in July 1997 and was entitled “The economic costs of night flying restrictions at the London airports”. The report concluded that the economic cost of the then current restrictions being maintained during the period 1997/1998 to 2002/2003 was about 850 million pounds sterling (GBP). BATA submitted the report to the government when it responded to the Preliminary Consultation Paper.
57. On 10 September 1998 the Government announced that the movement limits and noise quotas for summer 1999 would be the same as for summer 1998.
58. In November 1998, the government published the second stage Consultation Paper on night restrictions at Heathrow, Gatwick and Stansted. The Consultation Paper stated that it had been the view of successive governments that the policy on night noise should be firmly based on research into the relationship between aircraft noise and interference with sleep and that, in order to preserve the balance between the different interests, this should continue to be the basis for decisions. The Consultation Paper indicated that “interference with sleep” was intended to cover both sleep disturbance (an awakening from sleep, however short) and sleep prevention (a delay in first getting to sleep at night, and awakening and then not being able to get back to sleep in the early morning). The Consultation Paper stated that further research into the effect of aircraft noise on sleep had been commissioned, which would include a review of existing research in the United Kingdom and abroad, and a trial to assess methodology and analytical techniques to determine whether to proceed to a full-scale study of either sleep prevention or total sleep loss.
59. The Consultation Paper repeated the finding of the 1992 sleep study that for noise events in the range of 90-100 dBA SEL (80-95 dBA Lmax), the likelihood of the average person being awakened by an aircraft noise event was about 1 in 75. It acknowledged that the 1 in 75 related to sleep disturbance, and not to sleep prevention, and that while there was a substantial body of research on sleep disturbance, less was known about sleep prevention or total sleep loss.
60. The Consultation Paper stated that the objectives of the current review were, in relation to Heathrow, to strike a balance between the need to protect local communities from excessive aircraft noise levels at night and to provide for air services to operate at night where they were of benefit to the local, regional and national economy; to ensure that the competitive factors affecting United Kingdom airports and airlines and the wider employment and economic implications were taken into account; to take account of the research into the relationship between aircraft noise and interference with sleep and any health effects; to encourage the use of quieter aircraft at night; and to put in place at Heathrow, for the night quota period (11.30 p.m. to 6 a.m.), arrangements which would bring about further improvements in the night noise climate around the airport over time and update the arrangements as appropriate.
61. The Consultation Paper stated that since the introduction of the 1993 Scheme, there had been an improvement in the noise climate around Heathrow during the night quota period, based on the total of the quota count ratings of aircraft counted against the noise quota, but that there had probably been a deterioration over the full night period between 11 p.m. and 7 a.m. as a result of the growth in traffic between 6 a.m. and 7 a.m.
62. The Consultation Paper found a strong customer preference for overnight long-haul services from the Asia-Pacific region.
63. The Consultation Paper indicated that the government had not attempted to quantify the aviation and economic benefits of night flights in financial terms. This was because of the difficulties in obtaining reliable and impartial data on passenger and economic benefits (some of which were commercially sensitive) and modelling these complex interactions. BATA had submitted a copy of the Coopers & Lybrand July 1997 report with its response to the Preliminary Consultation Paper, and the Consultation Paper noted that the report estimated the value of an additional daily long-haul scheduled night flight at Heathrow to be GBP 20 million to GBP 30 million per year, over half of which was made up of airline profits. The Consultation Paper stated that the financial effects on airlines were understood to derive from estimates made by a leading United Kingdom airline. Other parts of the calculation reflected assumptions about the effects on passengers and knock-on effects on other services, expressed in terms of an assumed percentage of the assumed revenue earned by these services. The Consultation Paper stated that the cost of restricting existing night flights more severely might be different, and that BATA's figures took no account of the wider economic effects which were not captured in the estimated airline and passenger impacts.
64. The Consultation Paper stated that, in formulating its proposals, the government had taken into account both BATA's figures and the fact that it was not possible for the government to test the estimates or the assumptions made by BATA. Any value attached to a “marginal” night flight had to be weighed against the environmental disadvantages. These could not be estimated in financial terms, but it was possible, drawing on the 1992 sleep study, to estimate the number of people likely to be awakened. The Consultation Paper concluded that, in forming its proposals, the government must take into account, on the one hand, the important aviation interests involved and the wider economic considerations. It seemed clear that United Kingdom airlines and airports would stand to lose business, including in the daytime, if prevented by unduly severe restrictions from offering limited services at night, that users could also suffer, and that the services offered by United Kingdom airports and airlines would diminish, and with them the appeal of London and the United Kingdom more generally. On the other hand, these considerations had to be weighed against the noise disturbance caused by night flights. The proposals made in the Consultation Paper aimed to strike a balance between the different interests and, in the government's view, would protect local people from excessive aircraft noise at night.
65. The main proposals in relation to Heathrow were: not to introduce a ban on night flights, or a curfew period; to retain the seasonal noise quotas and movement limits; to review the QC classifications of individual aircraft and, if this produced significant re-classifications, to reconsider the quota limits; to retain the QC system; to review the QC system before the 2002 summer season (when fleet compositions would have changed following completion of the compulsory phase-out in Europe of “Chapter 2” civil aircraft, with the exception of Concorde, which began in April 1995), in accordance with the policy of encouraging the use of quieter aircraft; to reduce the summer and winter noise quotas; to maintain the night period as 11 p.m. to 7 a.m. and the night quota period as 11.30 p.m. to 6 a.m.; to extend the restrictions on aircraft classified as QC8 on arrival or departure to match those for QC16; and to ban QC4 aircraft from being scheduled to land or take off during the night quota period from the start of the 2002 summer season (that is, after completion of the compulsory Chapter 2 phase-out).
66. The Consultation Paper stated that since the introduction of the 1993 Scheme, headroom had developed in the quotas, reducing the incentive for operators to use quieter aircraft. The reduction in summer and winter noise quotas to nearer the level of current usage was intended as a first step to restoring the incentive. The winter noise quota level under the 1993 Scheme was 5,000 QC points, and the average usage in the last two traffic seasons had been 3,879 QC points. A reduction to 4,000 was proposed. The summer noise quota level had been 7,000 points, and the average usage in the last two seasons was provisionally calculated at 4,472. A reduction to 5,400 was proposed. The new levels would remain in place until the end of the summer 2004 season, subject to the outcome of the QC review.
67. Part 2 of the Consultation Paper invited comments as to whether runway alternation should be introduced at Heathrow at night, and on the preferential use of Heathrow's runways at night.
68. On 10 June 1999 the government announced that the proposals in the November 1998 Consultation Paper would be implemented with effect from 31 October 1999, with limited modifications. With respect to Heathrow, the only modification was that there was to be a smaller reduction in the noise quotas than proposed. The quotas were set at 4,140 QC points for the winter, and 5,610 QC points for the summer. The effect of this was to set the winter quota at a level below actual usage in winter 1998/99.
69. The 1999 Scheme came into effect on 31 October 1999.
70. On 10 November 1999, a report was published on “The contribution of the aviation industry to the UK economy”. The report was prepared by Oxford Economic Forecasting and was sponsored by a number of airlines, airport operators and BATA, as well as the government.
71. On 23 November 1999 the government announced that runway alternation at Heathrow would be extended into the night “at the earliest practicable opportunity”, and issued a further Consultation Paper concerning proposals for changes to the preferential use of Heathrow's runways at night.
72. In December 1999, the DETR and National Air Traffic Services Limited published the final report of the ANMAC Technical Working Group on “Noise from Arriving Aircraft”. The purpose of the report was to describe objectively the sources of operational noise for arriving aircraft, to consider possible means of noise amelioration, and to make recommendations to the DETR.
73. In March 2000, the Department of Operational Research and Analysis (DORA) published a report, prepared on behalf of the DETR, entitled “Adverse effects of night-time aircraft noise”. The report identified a number of issues for possible further research, and was intended to form the background to any future United Kingdom studies of night-time aircraft noise. The report stated that gaps in knowledge had been identified, and indicated that the DETR was considering whether there was a case for a further full-scale study on the adverse effects of night-time aircraft noise, and had decided to commission two further short research studies to investigate the options. These studies were commissioned in the autumn of 1999, before the publication of the DORA report. One is a trial study to assess research methodology. The other is a social survey the aims of which included an exploration of the difference between objectively measured and publicly received disturbance due to aircraft noise at night. Both studies are being conducted by university researchers.
74. A series of noise mitigation and abatement measures is in place at Heathrow Airport, in addition to restrictions on night flights. These include the following: aircraft noise certification to reduce noise at source; the compulsory phasing out of older, noisier jet aircraft; noise preferential routes and minimum climb gradients for aircraft taking off; noise abatement approach procedures (continuous descent and low power/low drag procedures); limitation of air transport movements; noise-related airport charges; noise insulation grant schemes; and compensation for noise nuisance under the Land Compensation Act 1973.
75. The DETR and the management of Heathrow Airport conduct continuous and detailed monitoring of the restrictions on night flights. Reports are provided each quarter to members of the Heathrow Airport Consultative Committee, on which local government bodies responsible for areas in the vicinity of Heathrow Airport and local residents' associations are represented.
76. Section 76(1) of the 1982 Act provides, in its relevant part:
77. Air Navigation Orders made under the 1982 Act provide for Orders in Council to be made for the regulation of aviation. Orders in Council have been made to deal with, amongst other matters, engine emissions, noise certification and compensation for noise nuisance.
78. Section 78(3) of the 1982 Act provides, in its relevant part:
“If the Secretary of State considers it appropriate for the purpose of avoiding, limiting or mitigating the effect of noise and vibration connected with the taking-off or landing of aircraft at a designated aerodrome, to prohibit aircraft from taking off or landing, or limit the number of occasions on which they may take off or land, at the aerodrome during certain periods, he may by a notice published in the prescribed manner do all or any of the following, that is to say –
(a) prohibit aircraft of descriptions specified in the notice from taking off or landing at the aerodrome (otherwise than in an emergency of a description so specified) during periods so specified;
(b) specify the maximum number of occasions on which aircraft of descriptions so specified may be permitted to take off or land at the aerodrome ... during the periods so specified;
...”
79. Restrictions on night flights at Heathrow Airport are imposed by means of notices published by the Secretary of State under section 78(3) of the 1982 Act.
80. The local authorities for the areas around the three main London airports sought judicial review of the Secretary of State's decision to introduce the 1993 Scheme. They made four consecutive applications for judicial review, and appealed twice to the Court of Appeal. The High Court declared that the 1993 Scheme was contrary to the terms of section 78(3)(b) of the 1982 Act, and therefore invalid, because it did not “specify the maximum number of occasions on which aircraft of descriptions so specified may be permitted to take off or land” but, instead, imposed controls by reference to levels of exposure to noise energy (see R. v. Secretary of State for Transport, ex parte Richmond upon Thames Borough Council and Others [1994] 1 Weekly Law Reports 74).
81. The Secretary of State decided to retain the quota count system, but with the addition of an overall maximum number of aircraft movements. This decision was held by the High Court to be in accordance with section 78(3)(b) of the 1982 Act. However, the 1993 Consultation Paper was held to have been “materially misleading” in failing to make clear that the implementation of the proposals for Heathrow Airport would permit an increase in noise levels over those experienced in 1988 (see R. v. Secretary of State for Transport, ex parte Richmond upon Thames Borough Council and Others [1995] Environmental Law Reports 390).
82. Following the publication of a further Consultation Paper in March 1995, and of a supplement to the March 1995 Consultation Paper in June 1995, the local authorities brought a further application for judicial review. In July 1996, the Court of Appeal decided that the Secretary of State had given adequate reasons and sufficient justification for his conclusion that it was reasonable, on balance, to run the risk of diminishing to some degree local people's ability to sleep at night because of the other countervailing considerations to which he was, in 1993, willing to give greater weight, and that by June 1995 errors in the consultation papers had been corrected and the new policy could not be said to be irrational (see R. v. Secretary of State for Transport, ex parte Richmond LBC [1996] 1 Weekly Law Reports 1460).
83. On 12 November 1996 the House of Lords dismissed a petition by the local authorities for leave to appeal against the decision of the Court of Appeal.
VIOLATED_ARTICLES: 13
NON_VIOLATED_ARTICLES: 8


ITEMID: 001-81333
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF ŠILIH v. SLOVENIA
IMPORTANCE: 2
CONCLUSION: Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Preliminary objection allowed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Corneliu Bîrsan;David Thór Björgvinsson
TEXT: 5. The applicants, Franja and Ivan Šilih, were born in 1949 and 1940 respectively and live in Slovenj Gradec.
6. On 3 May 1993, at a disputed time between midday and 1.00 p.m., the applicants’ son, Gregor Šilih, aged 20, sought medical aid in the Slovenj Gradec General Hospital because of, inter alia, nausea and itching skin. He was examined by a doctor on duty, M.E. On the basis of a diagnosis of urticaria (a type of allergic reaction), M.E. ordered the administration of intravenous injections of a drug containing glucocorticosteroid (Dexamethason) and an antihistaminic (Synopen). Further to the administration of injections, the applicants’ son’s condition significantly deteriorated. This was probably a result of him being allergic to one or both of the drugs that had been administered to him. His skin became very pale, he began to tremble and to feel cold; M.E. noticed signs of tachycardia. A diagnosis of anaphylactic shock was made. Subsequently, at 1.30 p.m., he was transferred to intensive care. M.E. ordered the administration of, inter alia, adrenaline. By the time the cardiologist arrived, the applicants’ son had stopped breathing and had no pulse. Cardiopulmonary resuscitation was given. At an undetermined time around 2.15 p.m. the applicants’ son was connected to a respirator and his blood pressure and pulse returned to normal, but he remained in a coma; his brain was severely damaged.
7. On 4 May 1993 he was transferred to the Ljubljana Clinical Centre (Klinični center v Ljubljani), where he died on 19 May 1993.
8. The exact timing of the events which led to the death of the applicants’ son and the action taken by M.E. in response to the applicants’ son’s deteriorating condition were disputed in the domestic proceedings.
9. On 13 May 1993 the applicants lodged a criminal complaint (ovadba) with the Slovenj Gradec Unit of the Maribor Basic Public Prosecutor’s Office (Temeljno javno tožilstvo Maribor, Enota v Slovenj Gradcu) against M.E. for the criminal offence of “negligent medical treatment” (nevestno zdravljenje) which, following the applicants’ son’s death, was characterized as “a serious criminal offence that [had] caused damage to health” (hudo kaznivo dejanje zoper človekovo zdravje). The applicants argued that M.E. had given their son the wrong treatment and had failed to take appropriate measures after his condition deteriorated.
10. In the course of the preliminary proceedings (predkazenski postopek), medical documents concerning the treatment of the applicants’ son were seized by the police and the Ljubljana Institute for Forensic Medicine (Inštitut za sodno medicino v Ljubljani) was appointed to prepare a forensic report.
11. On 8 April 1994 the Public Prosecutor dismissed the applicants’ criminal complaint on the ground of insufficient evidence.
12. On 1 August 1994 the applicants, acting as subsidiary prosecutors (subsidiarni tožilec), lodged a request for the opening of a criminal investigation (zahteva za preiskavo) against M.E.
13. On 8 November 1994 the investigating judge of the Maribor Basic Court (Temeljno sodišče v Mariboru) granted their request. On 27 December 1994, upon an appeal by M.E. (pritožba), the interlocutory-proceedings panel (zunaj obravnavni senat) of the Maribor Basic Court overturned the investigating judge’s decision finding that the evidence in the case-file, in particular the forensic report, did not afford reasonable grounds for suspecting that M.E. had manifestly acted in breach of professional standards.
14. The applicants’ appeal (pritožba) and a request for the protection of legality (zahteva za varstvo zakonitosti) were dismissed. The latter was dismissed on 29 June 1995 by the Slovenj Gradec District Court (Okrožno sodišče v Slovenj Gradcu), which obtained jurisdiction in the case after the reorganization of the judiciary in 1995.
15. Subsequently, the applicants obtained a medical opinion from Doctor T.V. who stated, inter alia, that myocarditis (inflammation of the heart muscle), which had previously been considered to be a contributory factor in the death of the applicants’ son, could have occurred when he was in anaphylactic shock or even later. As a result, on 30 November 1995 they lodged a request to reopen a criminal investigation (see paragraph 72). In addition, they lodged a motion to change the venue of the proceedings to the Maribor District Court (Okrožno sodišče v Mariboru). On 31 January 1996 the Maribor Higher Court granted their motion for a change of venue.
16. On 26 April 1996 the interlocutory-proceedings panel of the Maribor District Court granted the applicants’ request for an investigation. An appeal by M.E. was rejected by the Maribor Higher Court on 4 July 1996 and the investigation was subsequently opened.
17. In the course of the investigation, the investigating judge examined witnesses and obtained an opinion from P.G., an expert at the Institute of Forensic Medicine in Graz (Austria). P.G. stated in his report that the administration of antihistaminic had led to the applicants’ son’s serious allergic reaction. He expressed doubts as to the pre-existence of myocarditis.
18. On 10 February 1997 the investigating judge closed the investigation.
19. Owing to the complexity of the case, the applicants asked the Maribor District Public Prosecutor’s Office to take over the prosecution. Their request was rejected on 21 February 1997.
20. On 28 February 1997 the applicants lodged an indictment against M.E. for the criminal offence of “causing death by negligence” (povzročitev smrti iz malomarnosti).
21. On 7 May 1997, upon M.E.’s objection to the indictment, the interlocutory-proceedings panel of the Maribor District Court directed the applicants to request additional investigative measures.
22. The investigating judge subsequently examined several witnesses and ordered that a forensic report be prepared by K.H., an Austrian forensic expert in the field of emergency medicine and anaesthesia. K.H. stated in his report that the ultimate reason for the death of the applicants’ son was rather uncertain. He therefore considered the issue of the effectiveness of the measures taken by M.E in response to the applicants’ son’s condition as being of no importance.
23. On 24 November 1998 the investigating judge informed the applicants that the investigation had been closed.
24. On 10 December 1998 the applicants lodged an indictment supplemented by evidence that had been gathered in the extended investigation. On 12 January 1999 an interlocutory-proceedings panel rejected M.E.’s objection against the initial indictment (see paragraph 20 above) as unfounded.
25. On 22 January 1999 M.E. lodged a request for the protection of legality, claiming that the indictment as submitted on 10 December 1998 had not been served on her. On 25 February 1999 the Supreme Court annulled the Maribor District Court’s decision of 12 January 1999 and remitted the case to the District Court with instructions to serve the initial indictment on M.E. M.E. subsequently lodged an objection and on 3 June 1999 the interlocutory-proceedings panel decided to refer the case back to the applicants, directing them to gather more evidence by requesting additional investigative measures.
26. The applicants complied with the directions and requested additional investigative measures. As a result, the investigating judge ordered a supplementary report from K.H., a reconstruction of the events of 3 May 1993 and the examination of witnesses.
The investigation was closed on 3 May 2000.
27. In the meantime, on 28 June 1999 the applicants again unsuccessfully requested the Public Prosecutor to take over the prosecution.
28. On 19 May 2000 the applicants filed a further indictment and the additional evidence they had been directed to obtain.
29. In August 2000 the applicants complained to the Judicial Council (Sodni svet) about the length of the criminal proceedings. They also challenged the three judges sitting in the interlocutory-proceedings panel which had previously decided on M.E.’s objection to the indictment. On 10 October 2000 the President of the Maribor District Court rejected the applicants’ request for the judges to stand down.
30. Following a further objection to the indictment by M.E., the interlocutory-proceedings panel examined the case on 18 October 2000 and decided to discontinue the criminal proceedings. Relying in particular on the opinions of the Ljubljana Institute of Forensic Medicine and K.H., it found that the applicants’ son’s reaction to the administration of Dexamthason and/or Synopen was a consequence of his sensitivity to those drugs and of myocarditis, which was undoubtedly a pre-existing condition. The court found that there was insufficient evidence to substantiate the applicants’ accusation that M.E. had committed the alleged criminal offence. The applicants were also ordered to pay court fees and expenses incurred in the proceedings.
31. On 7 November 2000 the applicants lodged an appeal, which the Maribor Higher Court dismissed on 20 December 2000. The applicants then petitioned the Public Prosecutor General to lodge a request for the protection of legality with the Supreme Court. Their petition was rejected on 18 May 2001.
32. In the meantime, on 13 March 2001 the applicants lodged a constitutional appeal with the Constitutional Court (Ustavno sodišče), complaining about the unfairness and length of the proceedings and that they had been denied access to a court since the indictment had been rejected by the interlocutory-proceedings panel. On 9 October 2001 the Constitutional Court dismissed their appeal on the ground that a subsidiary prosecutor did not have locus standi before the Constitutional Court.
33. On 27 March 2001 the applicants also lodged a criminal complaint against seven judges of the Maribor District and Higher Court who had sat in their case. The criminal complaint, in which the applicants alleged that the judges had improperly dealt with their case, was dismissed as unfounded by the Maribor Public Prosecutor’s Office on 13 June 2001.
34. Subsequently, the applicants made several attempts to re-open the case. Ultimately, on 16 July 2002, they lodged a new indictment against M.E. On 14 July 2003 the Slovenj Gradec District Court struck the indictment out because the prosecution of the alleged offence had become time-barred on 3 May 2003.
35. On 6 July 1995 the applicants instituted civil proceedings against the Slovenj Gradec General Hospital and M.E. in the Slovenj Gradec District Court for the non-pecuniary damage they had sustained as a result of their son’s death in the amount of 24,300,000 Slovenian tolars (SIT).
36. On 10 August 1995 the applicants also instituted proceedings against the head of the internal medical care unit, F.V., and the director of the Slovenj Gradec General Hospital, D.P. Further to a request by the applicants, the court joined the two sets of proceedings.
37. All the defendants in the proceedings had lodged their written pleadings by October 1995.
38. On 30 August 1997, in a supervisory appeal (nadzorstvena pritožba) to the President of the Slovenj Gradec District Court, the applicants argued that the civil proceedings should proceed despite the fact that criminal proceedings were pending since the latter had already been considerably delayed.
39. On 21 October 1997 the court, referring to sub-paragraph 1 of section 213 of the Civil Procedure Act (see paragraph 77 below), stayed the civil proceedings pending the final decision in the criminal proceedings. It noted that the decision in the civil proceedings depended to a large extent on the determination of the preliminary question (predhodno vprašanje), namely the outcome of the criminal proceedings. The applicants did not appeal against that decision, which therefore became final on 17 November 1997.
40. On 22 October 1998 Judge S.P. replied to the applicants’ supervisory appeal of 15 October 1998, stating, inter alia:
“[The applicants] are subsidiary prosecutors in the criminal proceedings and therefore know very well that the proceedings before the Maribor District Court, where the preliminary question is being determined, have not been completed. Their supervisory appeal concerning the stay of the [civil] proceedings is therefore pure hypocrisy.”
Upon a complaint by the applicants lodged with the Ministry of Justice, Judge S.P. was ordered to explain her reply to the applicants.
41. In February 1999 the applicants again filed a supervisory appeal; the stay, however, remained in force.
42. On 27 August 1999 Judge P.P., to whom the case appears to have been assigned in the meantime, sent the applicants a letter, in which he stated, inter alia:
“In the instant case the determination of criminal liability is a preliminary question which is relevant for the determination of the civil claim, since a civil court cannot establish facts which are different from those established by the criminal court”
43. On 8 September 1999 the applicants filed a motion for a change of venue, which the Supreme Court rejected on 13 October 1999.
44. On 6 December 1999 the Slovenj Gradec District Court informed the applicants that the reasons for staying the proceedings still obtained.
45. On 12 March 2001 the applicants filed a supervisory appeal requesting that the stay of the civil proceedings be lifted. On 19 May 2001 Judge P.P. scheduled a hearing for 13 June 2001. However, the scheduled hearing was subsequently cancelled at the applicants’ request.
46. On 11 June 2001 the applicants filed a further motion for a change of venue. On 27 September 2001 the Supreme Court decided to move the venue to the Maribor District Court on the ground that there existed “tension which was impeding and delaying the trial.”
47. The case was subsequently assigned to Judge M.T.Z. On 3 April 2002 the court held a hearing.
48. After lodging criminal complaints against some of the judges (see paragraph 33 above), the applicants filed a motion on 8 April 2002 for all the judges at the Maribor District Court and Maribor Higher Court to stand down. Having been asked to comment on the applicants’ request, Judge M.T.Z. stated, inter alia, that she had realised at the hearing on 3 April 2002 that one of the defendants, with whom she had shaken hands at the hearing, was a close acquaintance (“dobra znanca”) of her father. She added that the applicants were constantly lodging objections which made it impossible to conduct the proceedings. It would appear that Judge M.T.Z subsequently herself requested permission to withdraw from the case. On 12 August 2002 the request for the judges to stand down was granted as far as it concerned Judge M.T.Z. The case was assigned to Judge K.P.
49. On 24 November 2002 and 20 March 2003 the Supreme Court rejected the applicants’ motions for a change of venue.
50. A hearing scheduled for 12 June 2003 was adjourned at the applicants’ request, after they had alleged that their lawyer was unwilling to represent them since her daughter had been denied medical care in the Ljubljana Clinical Centre. Afterwards, they informed the court that their lawyer would continue to represent them.
51. On 28 October 2003 the Maribor District Court held a hearing.
52. On 8 December 2003 the applicants filed a motion for Judge K.P. to stand down. The request was rejected on 18 December 2003.
53. A hearing scheduled for 16 January 2004 was adjourned because the applicants had lodged a motion for a change of venue. On 5 March 2004 the applicants lodged another motion. Both motions were rejected by the Supreme Court (on 22 January 2004 and 13 May 2004 respectively).
54. It appears that the hearings scheduled for 23 and 24 March 2005 were adjourned due to the applicants’ newly appointed lawyer’s commitments in another unrelated case.
55. On 4 May 2005 the applicants filed written submissions and amended their claim for damages. They also requested that the proceedings be expedited.
56. Hearings were held on 23, 25 and 27 January 2006 before Judge D.M., to whom the case had apparently meanwhile been assigned. The applicants withdrew their claims in respect of F.V. and D.P. After the hearing, they requested Judge D.M. to stand down. Their request was rejected by the President of the Maribor District Court on 30 January 2006. However, on 31 January 2006, Judge D.M. herself asked to withdraw from the proceedings, on the ground that her full name had been mentioned in a newspaper article on 28 January 2006 which also stated that she had been asked to stand down owing to the alleged unequal treatment of the parties in the proceedings. The President of the court upheld her request as being “certainly well-founded”.
57. The case was subsequently assigned to Judge A.Z.
58. Hearings were held on 16 June and 25 August 2006.
59. On the latter date the Maribor District Court delivered a judgment in which it rejected the applicants’ claim, which ultimately amounted to SIT 10,508,000 in respect of non-pecuniary damage and SIT 5,467,000 in respect of pecuniary damage. The applicants were ordered to pay legal costs to the defendants. Relying on the expert opinions, the court concluded that M.E. could not have foreseen the applicants’ son’s reaction to drugs administrated to him and that she and the hospital staff had acted in accordance with the required standard of care. In addition, the court rejected as unsubstantiated the applicants’ claim that the hospital was not sufficiently equipped.
60. On 25 October 2006 the applicants lodged an appeal with the Maribor Higher Court. The proceedings are still pending.
61. On 29 April 2002 the Maribor District Public Prosecutor lodged a bill of indictment (obtožni predlog) against the first applicant. She was accused of insulting behaviour by allegedly saying to an official at the Maribor District Court “I have had enough of this f** court, the damn State does not do anything, is it not aware that our son was killed”. The prosecution was based on a criminal complaint filed by the Maribor District Court.
62. On 5 October 2004 the Maribor District Court withdrew the criminal complaint as a result of the Ombudsman’s intervention (see paragraph 67 below). The Maribor Local Court subsequently dismissed the bill of indictment.
63. The applicants lodged several petitions with the Ombudsman’s office concerning the conduct of the civil proceedings. Their case was reported in the Ombudsman’s Annual Reports of 2002, 2003 and 2004.
64. In a letter sent to the President of the Slovenj Gradec District Court on 24 April 2001, the Deputy Ombudsman stressed that the issue of criminal liability could not be regarded as a preliminary question (predhodno vprašanje) in the civil proceedings instituted against the doctor and the hospital. He further stated that there was no justification for staying the proceedings.
65. In a letter to the applicants of 29 August 2002 and his Annual Report of 2002 (pp. 42 and 43), the Ombudsman criticised the conduct of Judge M.T.Z. The Ombudsman stressed that the judge had expressed concerns about her impartiality (see paragraph 48 above) only after the applicants had filed the request for her to stand down and after the Ombudsman’s intervention in the case, although she had been aware of the reasons for the concerns beforehand.
66. The section of the Ombudsman’s Report of 2003 (pp. 226-228) dealing with the applicants’ case and in particular criticising aspects of the judge’s conduct of the civil proceedings states, inter alia:
“In the record of the hearing [of 28 October 2003] reference is made to twelve questions which the plaintiffs were not permitted to ask. ... For the majority of these twelve questions, the record does not contain any reasons to explain why the judge did not allow the plaintiffs to put the question. In each instance, there was a prior objection by the defendants’ representatives to the question.
...
Although [the applicants’] reactions, statements and proposals were perhaps sometimes extreme, the authorities, including the courts, ought to have taken into account their emotional distress... This may require the trial to be conducted in a particularly respectful and flexible way, without breaching procedural rules to the detriment of the defendants. However, the record of the hearing gives the impression of a tense rather than comfortable atmosphere at the hearing, this being supported also by the records of the exchanges between the judge and the plaintiffs’ representative.”
67. In his Annual Report of 2004 (pp. 212-214), the Ombudsman criticised the Maribor District Court for filing the criminal complaint against the first applicant (see paragraphs 61-62 above). The report drew attention to the Maribor District Court’s explanation that the court was required by law to file and pursue the criminal complaint as to refrain would constitute a criminal offence. The Ombudsman stressed that there was no legal basis for such a conclusion. On the contrary, a criminal charge for an offence of insulting behaviour could only be pursued on the basis of the aggrieved party’s criminal complaint, which in the instant case was the Maribor District Court’s complaint. Following the Ombudsman’s intervention and in view of the arguments expressed in its letters, the Maribor District Court decided to withdraw the criminal complaint against the first applicant.
68. The Criminal Code (Kazenski zakonik, Official Gazette no. 63/94), as amended, defines, under the heading “Criminal Offences causing Damage to Health” criminal offences concerning injury caused by the negligence of health-care providers. In addition, Article 129 of the Criminal Code provides that anyone who causes the death of another by negligence shall be sentenced to imprisonment for not less than six months and not more than five years. These offences are subject to mandatory prosecution by the Public Prosecutor, but a subsidiary prosecution by an aggrieved party will also lie (see, paragraph 70 below).
69. Criminal proceedings in Slovenia are regulated by the Criminal Procedure Act (Zakon o kazenskem postopku, Official Gazette no. 63/94; hereinafter referred to as the “CPA”) and based on the principles of legality and officialness; Prosecution is mandatory when reasonable suspicion (utemeljeni sum) exists that a criminal offence subject to mandatory prosecution has been committed.
70. Public prosecutions are conducted by the public prosecutor’s office. However, if the public prosecutor dismisses the criminal complaint or drops the prosecution at any time during the course of the proceedings, the aggrieved party has the right to take over the proceedings in the capacity of subsidiary prosecutor (subsidiarni tožilec), that is, as an aggrieved party acting as a prosecutor (CPA, section 19(3)). A subsidiary prosecutor has, in principle, the same procedural rights as the public prosecutor, except those vested in the public prosecutor as an official authority (CPA, section 63(1)). If the subsidiary prosecutor takes over the proceedings, the public prosecutor is entitled at any time pending the conclusion of the main hearing to resume the conduct of the prosecution (CPA, section 63(2)).
71. Criminal investigations are conducted by the investigating judge at the request of a public or subsidiary prosecutor. If the investigating judge does not agree with the request to open an investigation, he must refer it to an interlocutory-proceedings panel of three judges (zunaj-obravnavni senat), which then decides whether to open a criminal investigation. If the investigating judge grants the request, the accused may lodge an appeal with the interlocutory-proceedings panel. Parties to the proceedings may appeal against the interlocutory-proceedings panel’s decision to the Higher Court (višje sodišče). Appeals do not stay the execution of the decision to open an investigation (section 169 of the CPA).
72. If a request for investigation has been dismissed owing to a lack of reasonable suspicion that the suspect has committed a criminal offence, criminal proceedings may be reopened at the request of the public or subsidiary prosecutor provided that new evidence is produced on the basis of which the interlocutory-proceedings panel can satisfy itself that the conditions for instituting criminal proceedings are met (CPA, section 409).
73. The investigating judge terminates the investigation once the circumstances of the case have been sufficiently elucidated (CPA, section 184). Thereafter, proceedings before a court may be conducted only on the basis of an indictment (CPA, section 268).
74. According to section 274 of the CPA, the accused may lodge an objection to the indictment within eight days after its receipt. The objection is examined by the interlocutory-proceedings panel. Section 276 of the CPA provides, inter alia:
“(2) If in considering the objection the interlocutory-proceedings panel discovers errors or deficiencies in the indictment (section 269) or in the procedure itself, or finds that further investigations are required before the decision on the indictment is taken, it shall return the indictment to the prosecutor to correct the established deficiencies or to supplement ... the investigation. The prosecutor shall within three days of being informed of the decision of the panel submit an amended indictment or request the ... supplementing of investigation. ...”
In addition, the relevant part of section 277 of the CPA provides:
“(1) In deciding an objection to the indictment the interlocutory-proceedings panel shall not allow the indictment and shall discontinue the criminal proceedings if it finds that:
...
3) a criminal prosecution is statute-barred ...
4) there is not enough evidence to justify reasonable suspicion that the accused has committed the act with which he is charged.”
75. Under the provisions of the Obligations Act (Zakon o obligacijskih razmerjih, Socialist Federative Republic of Yugoslavia’s (“SFRJ”) Official Gazette no. 29/1978,) and its successor from 1 January 2002, the Code of Obligations (Obligacijski zakonik, Official Gazette no. 83/2001), health institutions and their employees are liable for pecuniary and non-pecuniary damage resulting from the death of a patient caused by medical malpractice. The employer may incur civil liability for its own acts or omissions or vicarious liability for damage caused by its employees provided that the death or injury resulted from the employee’s failure to conform to the relevant standard of care. Employees are directly liable for death or injury under the civil law only if it is caused intentionally. However, the employer has a right to bring a claim for a contribution from the employee if the death or injury was caused by the latter’s gross negligence.
76. Section 12 of the Civil Procedure Act (Zakon o pravdnem postopku, SFRJ Official Gazette no. 4-37/77), as amended, provides:
“When the decision of the court depends on the preliminary determination of the question whether a certain right or legal relationship exists, but [the question] has not yet been decided by a court or other competent authority (preliminary question), the court may determine the question by itself, save as otherwise provided in the special legislation.
The court’s decision on the preliminary question shall be effective only in the proceedings in which the question was determined.
In civil proceedings, the court shall be bound with respect to the existence of the criminal offence and criminal liability by the final criminal court’s judgment by which the accused was found guilty.”
77. The relevant part of section 213 of the Civil Procedure Act provides as follows:
“In addition to the examples specifically given in this Act, the court may order a stay of proceedings:
1. if it decides not to determine the preliminary question itself (section 12) ... .”
78. The relevant part of section 215 of the Civil Procedure Act provides:
“If the court has stayed the proceedings in accordance with the first line of the first paragraph of ... section 213, the proceedings shall resume once the [other] proceedings are finally concluded (pravnomočno končan postopek) ... or when the court finds that there is no longer any reason to await the end [of the other proceedings].
In all cases, the discontinued proceedings shall continue at the relevant party’s request, immediately after the reasons justifying the stay cease to exist.”
79. Equivalent provisions can be found in sections 13, 14, 206 and 208 of the new Civil Procedure Act (Zakon o pravdnem postopku, Official Gazette no. 83/2001) that came into force on 14 July 1999.
80. The Regulation on the organisation and functioning of Tribunal of the Chamber of Physicians (“the Medical Tribunal”) (Pravilnik o organizaciji in delu razsodišča Zdravniške Zbornice Slovenije), issued on 20 March 2002, lays down, inter alia, the procedure for establishing the responsibility of doctors for breaches of the professional rules and the disciplinary measures which can be taken as a result. The Chamber’s prosecutor (tožilec Zbornice), who is elected from among the members of the Chamber of Physicians, is autonomous and has authority to lodge an indictment with the first-instance Medical Tribunal. The aggrieved party may request the Chamber’s prosecutor to start the proceedings, but the prosecution may reject such a request. If so, the aggrieved party may invite the Medical Tribunal to conduct a preliminary examination. However, the power to file the indictment is vested solely in the Chamber’s prosecutor.
81. Article 7 of the Regulation provides that the Medical Tribunal must base its decision solely on the indictment and evidence submitted by the Chamber’s prosecutor and the accused doctor. If the accused doctor or the Chamber’s prosecutor is dissatisfied with the verdict, he or she may appeal to the second-instance Medical Tribunal.
82. On 1 January 2007 the Act on the Protection of the Right to a Trial without Undue Delay (Zakon o varstvu pravice do sojenja brez nepotrebnega odlašanja – Official Gazette no. 49/2006 “the 2006 Act”) became operational. It allows a party to proceedings to ask for the proceedings to be expedited by means of a supervisory appeal (nadzorstvena pritožba) and a motion for deadline (rokovni predlog) and to lodge a claim for just satisfaction (zahteva za pravično zadoščenje). The remedies provided by this law are subject to certain restrictions in the case of finally resolved proceedings.
83. Section 2 of the 2006 Act states that it applies, inter alia, to parties to court proceedings and injured parties in criminal proceedings.
VIOLATED_ARTICLES: 2
VIOLATED_PARAGRAPHS: 2-1


ITEMID: 001-100404
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF HYDE PARK AND OTHERS v. MOLDOVA (Nos. 5 and 6)
IMPORTANCE: 3
CONCLUSION: Preliminary objections dismissed (victim, non-exhaustion of domestic remedies);Remainder inadmissible;Violation of Art. 11;Pecuniary and non-pecuniary damage - awards
JUDGES: David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
TEXT: 6. At the time of the events in question, Hyde Park was registered with the Moldovan Ministry of Justice as a non-governmental organisation lobbying, inter alia, for freedom of expression and the right to free assembly. In 2007 its members decided to discontinue registration on grounds of alleged pressure and intimidation from the State. In particular, they complained of the refusal of the Ministry of Justice to register amendments to the organisation's articles of association, the repeated freezing of its bank account, arbitrary arrest of its members, attempts to shut down its newspaper and other such interferences. Several of the organisation's leaders requested political asylum in western countries and it was decided to continue the activity under the same name but without being registered with the State authorities. It was also decided that the new unincorporated association would become the former organisation's successor. After the striking of the organisation out of the Government's list of non-governmental organisations, on 2 June 2008, Hyde Park's activity continued on the basis of new articles of association and all the activities were carried on. The association continued editing its newspaper and its internet page and continued staging protests and demonstrations.
7. On 23 July 2007 Hyde Park applied to the Municipal Council of Chişinău for authorisation to stage a protest on 30 August 2007 in front of the Ministry of Internal Affairs and the Prosecutor General's Office against alleged acts of harassment of Hyde Park by those bodies.
8. On 20 August 2007 the Municipal Council authorised the protest, to be staged on 30 August 2007 in front of the building of the Ministry of Internal Affairs between 7.30 a.m. and 8.15 a.m. and in front of the Prosecutor General's Office between 8.15 a.m. and 9 a.m. at a distance of at least fifty metres from the buildings.
9. On 30 August 2007, at 7.30 a.m., the applicants started their protest in front of the Ministry of Internal Affairs but were immediately approached by a police officer who ordered them to stop the protest because the Municipality's authorisation had been challenged by the Prosecutor General's Office in court on 29 August 2007. The police officer argued that according to the Law on the Prosecutor's Office, the prosecutor's appeal against an administrative act suspended the latter's action until after a court examined it. The applicants refused to comply and argued that the authorisation was valid and that their protest was peaceful. They relied on the provisions of the Constitution of Moldova and on the Convention. Shortly thereafter a police van arrived and Mr Ghenadie Brega, Mr Oleg Brega, Mr Hristea-Stan and Mr Juraveli were arrested and taken to a police station where they were questioned. At approximately 9.30 a.m. they were released without explanation. They could not continue their protest because the time indicated in the authorisation had lapsed.
10. The same day a criminal complaint was lodged against the police officers who carried out the arrests; however, the complaint was dismissed by the head of the police station of the Centru District on 19 September 2007 on the ground that the authorisation contained numerous flaws such as a failure to indicate the exact place of the protest and the number of participants.
11. It appears that the Prosecutor Office's appeal against the Municipality's authorisation of 20 August 2007 has never been examined by the courts.
12. On 30 August 2007 Mr Juraveli, the vice-president of Hyde Park, applied to the Municipality for an authorisation to stage a protest in front of the Ministry of Internal Affairs and the Prosecutor's Office between 4 and 11 September 2007 against the allegedly abusive suppression of its peaceful protest of the same date. In the application he indicated that ten persons were to participate in the demonstration and gave his name and those of Mr Oleg Brega and Mr Hristea-Stan as those responsible for the conduct of the demonstration.
13. The Municipality did not adopt a decision in respect of the application before the first date of the planned demonstration, on 4 September 2007. Therefore, at 9 a.m. that day the applicants started their protest in front of the Ministry of Internal Affairs. At 9.25 a.m. Ghenadie Brega, Oleg Brega and a Hyde Park member who is not an applicant were arrested on the ground that the demonstration had not been authorised. They were taken to a police station where they were body searched and kept for approximately five hours. According to the applicants the police examined and made copies of their documents including personal letters. Two of them were placed in cages and later in cells. Later they were taken to the Centru District Court and, since the hearing was adjourned, they were released at 3 p.m.
14. On 21 September 2007 the Centru District Court examined the charges against the applicants. The applicants argued that since the Municipality had failed to examine their application for authorisation before the date of the demonstration, they had the right to hold the demonstration in accordance with section 12(5) of the Assemblies Act. Moreover, they submitted that they had been told by a representative of the local authorities that the Municipality did not have time to deal with their request and that they could hold their protest as planned. The court dismissed the applicants' submissions and found that they had breached the provision of section 11(1) of the Assemblies Act by failing to submit the application within fifteen days in advance of the planned assembly. According to the court, the protest should have been held on 14 September 2007 at the earliest. Ghenadie and Oleg Brega were found guilty of organising an unauthorised demonstration and fined 800 Moldovan lei (MDL) each (approximately 48 euros (EUR)). Another Hyde Park member who is not applicant in the present case was fined MDL 200. The applicants' appeal was dismissed by the Chişinău Court of Appeal on the same grounds on 23 October 2007.
15. In the meantime, on 7 September 2007, the Municipality examined the application of 30 August 2007 (see paragraph 12 above) and issued an authorisation to organise and stage a protest in front of the buildings of the Ministry of Internal Affairs and the Prosecutor General's Office between 8 and 11 September 2007 to Mr Juraveli.
16. In the morning of 10 September 2007 several members of Hyde Park started to protest in front of the buildings of the Ministry of Internal Affairs and the Prosecutor General's Office; however, several minutes later the police arrived and arrested three persons (Mr Juraveli, Mr Oleg Brega and Mr Hristea-Stan) on the ground that the authorisation did not contain the names of all the persons involved in the protest. The Government maintained that they had been detained for breach of the peace and for having shouted insults about the Minister for Internal Affairs. At the police station those arrested were questioned and searched. They were released after five hours. The applicants maintained that, while detained, they were not allowed to make any telephone calls or to contact a lawyer.
17. The police filed administrative proceedings against the arrested persons; however, on 21 September 2007 the Centru District Court decided to discontinue the proceedings.
18. On 5 September 2007, Mr Oleg Brega wrote to the Prosecutor General making a criminal complaint in respect of the actions of the police at the demonstrations of 30 August and 4 September. A further letter to that effect was sent on 10 January 2008. The applicants maintain that they did not receive an official response to either letter.
19. Article 32 of the Constitution of the Republic of Moldova (on freedom of opinion and of expression) reads as follows:
“(1) Each citizen is guaranteed freedom of thought, of opinion, as well as freedom of expression in public through words, images or through other available means.
(2) Freedom of expression shall not harm the honour or dignity of others or the right of others to have their own opinion.
(3) The law prohibits and punishes the contestation and defamation of the State and the nation, calls to war and aggression, national, racial or religious hatred, and incitement to discrimination, territorial separatism, or public violence, as well as other expression which endangers the constitutional order.”
Article 40 (on freedom of assembly) provides:
“All meetings, demonstrations, rallies, processions or any other assemblies are free, and they may be organised and take place only peacefully and without the use of weapons.”
20. The relevant provisions of the Assemblies Act of 21 June 1995 read as follows:
(1) Assemblies shall be conducted peacefully, without any sort of weapons, and shall ensure the protection of participants and the environment, without impeding the normal use of public highways, road traffic and the operation of economic undertakings and without degenerating into acts of violence capable of endangering the public order and the physical integrity and life of persons or their property.
Assemblies shall be suspended in the following circumstances:
(a) denial and defamation of the State and of the people;
(b) incitement to war or aggression and incitement to hatred on ethnic, racial or religious grounds;
c) incitement to discrimination, territorial separatism or public violence;
d) acts that undermine the constitutional order.
(1) Assemblies may be conducted in squares, streets, parks and other public places in cities, towns and villages, and also in public buildings.
(2) It shall be forbidden to conduct an assembly in the buildings of the public authorities, the local authorities, prosecutors' offices, the courts or companies with armed security.
(3) It shall be forbidden to conduct assemblies:
(a) within fifty metres of the parliament building, the residence of the President of Moldova, the seat of the government, the Constitutional Court and the Supreme Court of Justice;
(b) within twenty-five metres of the buildings of the central administrative authority, the local public authorities, courts, prosecutors' offices, police stations, prisons and social rehabilitation institutions, military installations, railway stations, airports, hospitals, companies which use dangerous equipment and machines, and diplomatic institutions.
(4) Free access to the premises of the institutions listed in subsection (3) shall be guaranteed.
(5) The local public authorities may, if the organisers agree, establish places or buildings for permanent assemblies.
(1) Not later than fifteen days prior to the date of the assembly, the organiser shall submit a notification to the Municipal Council, a specimen of which is set out in the annex which forms an integral part of this Act.
(2) The prior notification shall indicate:
(a) the name of the organiser of the assembly and the aim of the assembly;
(b) the date, starting time and finishing time of the assembly;
(c) the location of the assembly and the access and return routes;
(d) the manner in which the assembly is to take place;
(e) the approximate number of participants;
(f) the persons who are to ensure and answer for the sound conduct of the assembly;
(g) the services the organiser of the assembly asks the Municipal Council to provide.
(3) If the situation so requires, the Municipal Council may alter certain aspects of the prior notification with the agreement of the organiser of the assembly.
(1) The prior notification shall be examined by the local government of the town or village at the latest 5 days before the date of the assembly.
(2) When the prior notification is considered at an ordinary or extraordinary meeting of the Municipal Council, the discussion shall deal with the form, timetable, location and other conditions for the conduct of the assembly and the decision taken shall take account of the specific situation.
(6) The local authorities can reject an application to hold an assembly only if after having consulted the police, it has obtained convincing evidence that the provisions of sections 6 and 7 will be breached with serious consequences for society.
(1) A decision rejecting the application for holding an assembly shall be reasoned and presented in writing. It shall contain reasons for refusing to issue the authorisation...
(1) The organiser of the assembly can challenge the refusal in the administrative courts.
Section 19
Participants at the assembly are required:
(a) to respect the present Act and other laws referred to herein;
(b) to respect the instructions of the organiser of the assembly, and decisions of the municipality or police;
...
(e) to leave the assembly if asked by the organiser, the municipality or the police.”
21. The relevant provisions of the Criminal Code read as follows:
(1) Illegal deprivation of liberty, if it is not a kidnapping, shall be punishable with community work of 120-240 hours or imprisonment of up to 2 years.
(2) The same offence committed
b) against two or more persons;
d) by two or more persons;
shall be punishable with imprisonment of 3 to 8 years.
(1) Violation of the right to freedom of assembly by way of illegal hindering of a demonstration, rally or action of protest or hindering of persons from taking part in them...:
a) committed by an official;
b) committed by two or more persons;
c) accompanied by acts of violence which are not dangerous to life or health,
shall be punishable with a fine of four to eight thousand Moldovan lei or with community work of 180-240 hours, or with imprisonment of up to two years.”
22. The relevant provisions of the Code of Administrative Offences, in force at the material time, read:
2. The organisation and holding of an assembly without prior notification to the Municipal Council or without authorisation from the Council, or in breach of the conditions (manner, place, time) concerning the conduct of meetings indicated in the authorisation shall be punishable by a fine to be imposed on the organisers (leaders) of the assembly in an amount equal to between MDL 500 and 1,000. ...
4. Active participation in an assembly referred to in paragraph 2 of the present article shall be punishable by a fine in an amount between MDL 200 and 300.
Resisting a police officer [...] in the exercise of his or her duties of ensuring public order and the fight against crime shall be punishable by a fine up to MDL 300 or detention of up to thirty days.
Insulting police officers ... in the exercise of their duties ... shall be punishable by a fine of up to MDL 200 or imprisonment of up to fifteen days.”
23. Article 14 of the Civil Code (on compensation for damage) provides that any person whose rights have been infringed may request full compensation in respect of the damage thus caused.
24. The relevant provisions of Law no. 1545 (1998) on compensation for damage caused by the illegal acts of the criminal investigation organs, prosecution and courts have been set out in this Court's judgment in Sarban v. Moldova, no. 3456/05, § 54, 4 October 2005. In the case of Belicevecen v. the Ministry of Finance (no. 2ra-1171/07, 4 July 2007) the Supreme Court of Justice found that a person could claim damages on the basis of Law no. 1545 (1998) only if he or she had been fully acquitted of all the charges against him or her. Since Mr Belicevecen had been found guilty in respect of one of the charges brought against him, he could not claim any damages.
VIOLATED_ARTICLES: 11