ITEMID: 001-96483
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: HERMA v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger
TEXT: The applicants, Mr Claus Herma and Mrs Heike Herma, are German nationals who were born in 1963 and 1964 respectively and live in Flörsheim. They were represented before the Court by Mr H.-J. Kühnel, a lawyer practising in Gründau. The German Government (“the Government”) were represented by their Agent, Mrs A. Wittling Vogel, Ministerialdirigentin, of the German Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
A sales representative contacted the first applicant at his workplace in autumn 1998 and offered the applicants an investment involving the purchase of property financed by a loan. During the subsequent consultations at their home they were offered, in addition to the property, complete financing to be provided by Kreissparkasse Groß-Gerau (“the bank”). The sales representative handled both the marketing of the property and the arrangement of finance. In the context of this marketing scheme the sales representative provided prospect information on the investment and used standard form contracts.
On 8 and 18 November 1999 the applicants purchased two apartments for DEM 556,070 German marks (DEM) (283,314.08 Euros (EUR)) plus additional charges (notary, real estate transfer costs, etc.) totalling DEM 115,930. The purchase agreements were signed before a notary, in accordance with the relevant German legislation. On the same dates charges were created on the properties.
Solely in order to finance the purchase, on 28 November 1999 the applicants took out a loan of DEM 672,000 (EUR 343,588.14) from the bank, secured by the charges on the properties which were created by the notarised deeds of 8 and 18 November 1999. The loan agreement contained no information regarding the right of cancellation within the meaning of the law on the cancellation of doorstep transactions or analogous transactions (Haustürwiderrufsgesetz, hereafter “Transactions Cancellation Act”). The completed forms of the financing bank were provided to the applicants by the sales representative at their home, where they later signed them.
The bank paid the loan directly to the company selling the immovable property in accordance with the applicants’ instructions.
In 2004 the applicants realised that the immovable property had been worth only 60 % of its purchase price at the time of purchase. On 5 August 2004 the applicants cancelled the loan agreement on the basis of Paragraph 1 of the Transactions Cancellation Act. They ceased to pay the monthly instalments under the loan agreement and offered to hand over their rights in respect of the purchased properties to the bank.
On 15 March 2005 the applicants applied for legal aid to pursue a claim to establish that they were not obliged to repay the amount of the loan to the bank and to order the bank to give them the notarised deeds. The applicants submitted that the purchase contracts and the loan agreement must be regarded as a single economic unit and that they were therefore merely required to retransfer ownership of the property pursuant to the fourth sentence of Paragraph 9 (2) of the law on consumer credit (Verbraucherkreditgesetz, hereafter “Consumer Credit Act”). They relied explicitly on the case-law of the 2nd Chamber of the Federal Court of Justice and referred to the corresponding preliminary ruling proceedings then impending before the Court of Justice of the European Communities (“ECJ”). The proceedings before the ECJ concerned the question whether the requirement under German law to immediately repay the loan proceeds plus interest at the market rate thereon to the bank upon cancellation of the loan agreement was in accordance with Community Law, notwithstanding that the loan would not have been granted at all without the acquisition of the immovable property, served solely to finance it and was paid directly to the vendor.
On 5 May 2005 the Darmstadt Regional Court refused to grant the applicants legal aid. It found that their proposed claim lacked a reasonable prospect of success. It followed explicitly the case-law of the 11th Chamber of the Federal Court of Justice and disagreed with the case-law of the 2nd Chamber of the same court without giving any further reasons. It found that the applicants were obliged by law to repay the loan plus interest at the normal market rate upon the cancellation of the loan agreement. It observed that the impending proceedings before the ECJ were not relevant and, in any event, that the Advocate General’s opinion was not favourable to the applicants.
On 18 August 2005 the Frankfurt/Main Court of Appeal rejected the applicants’ appeal. It endorsed the arguments given by the lower court and observed that the case-law of the 2nd Chamber of the Federal Court of Justice concerned the acquisition of a share in an investment fund financed by a loan.
On 23 October 2005 the Frankfurt/Main Court of Appeal rejected the applicants’ allegation that they had not been heard properly.
On 15 May 2007 the Federal Constitutional Court (1 BvR 2347/05) refused to admit the applicant’s complaint. It found that the alleged violation of the applicants’ rights under the Basic Law was not sufficiently serious. The applicants would in any event not suffer a significant disadvantage by the refusal to admit their constitutional complaint. It observed that the impugned decisions were problematic in the light of its case-law regarding legal aid in proceedings concerning a difficult legal question which had not yet been decided by authoritative case-law. In this connection it referred to the deferring case-law of the Chambers of the Federal Court of Justice and the impending preliminary ruling proceedings before the ECJ. Nevertheless, it found that the applicants could file a new request for legal aid to achieve their goal. In light of the case-law of the Federal Court of Justice which, in the meantime had been enhanced, it was not excluded that the applicants would receive legal aid upon a new request.
On 30 November 2005 the applicants again requested legal aid with respect to the decision of the ECJ of 25 October 2005 in the case C-350/03 (see “Relevant domestic law and practice” below).
On 2 January 2006 the Darmstadt Regional Court refused to grant the applicants legal aid. It referred to the reasons set out in the decisions rendered in the first set of proceedings and observed that the decision of the ECJ was merely directed at the Contracting State calling for further legislative measures.
On 23 February 2006 the Frankfurt/Main Court of Appeal rejected the applicants’ appeal. It found that the decision of the ECJ of 25 October 2005 in the case C-350/03 was not relevant. That case merely concerned a situation where, if the bank had complied with its obligation to inform the consumer of his right of cancellation, the consumer would have been able to avoid exposure to the risks inherent in investments. It observed that the applicants had concluded the purchase contract 10 days earlier than the loan agreement. Thus the bank’s failure to inform them of their right of cancellation had no causal link with the investment.
On 13 July 2006 the Frankfurt/Main Court of Appeal rejected the applicants’ allegation that they had not been heard properly.
On 15 May 2007 the Federal Constitutional Court (1 BvR 2166/06), referring to its decision of the same day in the complaint concerning the applicants’ first set of proceedings, refused to admit the applicants’ complaint, in which they had also raised the issue of an alleged obligation of the Frankfurt Court of Appeal to suspend the proceedings and refer the question to the ECJ.
On 28 August 2007 the applicants applied for legal aid again with regard to the Federal Constitutional Court’s decision of 15 May 2007 and observed that in their opinion the enhanced case-law of the Federal Court of Justice was not in accordance with the decisions of the ECJ of 25 October 2005.
On 10 October 2007 the Darmstadt Regional Court refused to grant the applicants legal aid. It referred to the reasons set out in the decisions in the previous proceedings for legal aid.
On 11 April 2008 the Frankfurt/Main Court of Appeal rejected the applicants’ appeal. It found that the Federal Court of Justice’s case-law according to which the purchase contracts and the loan agreement cannot be regarded as a single economic unit pursuant to Paragraph 9 (2) Consumer Credit Act was consistent with the decision of the ECJ of 25 October 2005 (see “Relevant domestic law and practice” below). The Court of Appeal further found that taking account of the Federal Court of Justice’s case-law and the new criteria set up by it to establish liability of the financing bank for the purchase of the property, the applicants’ claim lacked a reasonable prospect of success. It again observed in this context that the applicants had concluded the purchase contract ten days before the loan agreement; the bank’s failure to inform them of their right of cancellation had thus no causal link with the investment. Furthermore, there was nothing to suggest that the purchased property had had a blatant deficiency as the applicants themselves had simply realised five years after the purchase that its market value had been significantly lower than the purchase price.
On 21 May 2008 the applicants lodged a constitutional complaint with the Federal Constitutional Court.
On 12 June 2008 the applicants applied again for legal aid. They referred to the decision of the 2nd Chamber of the Federal Court of Justice of 5 May 2008 to seek a preliminary ruling of the ECJ as to whether the legal effects of the cancellation of a declaration of accession to a property fund under German law complied with Community law.
On 24 June 2008 the Darmstadt Regional Court rejected the applicants’ new request for legal aid for lacking a reasonable prospect of success. It found that the new request for a preliminary ruling from the ECJ concerned a different issue and that the applicants had failed to make any submissions which would satisfy the requirements of the Federal Court of Justice’s enhanced case-law. The applicants filed an appeal. The proceedings are apparently still pending.
In the version applicable at the material time, paragraph 1 (1) of the Transactions Cancellation Act provided:
“Where the customer was induced to make a declaration of intention to conclude a contract for a service for valuable consideration:
1. by oral negotiations at his place of work or in a private home,
[...]
that declaration of intention takes effect only if the customer does not give written notice revoking it within a period of one week.”
Paragraph 3 (1) of the Transactions Cancellation Act provided:
“In the event of cancellation, each contracting party shall return to the other whatever it has received. Damage to or loss of the object or any other matter preventing the return of the object shall not preclude cancellation.”
Paragraph 3 (2) of the Consumer Credit Act provides:
“Nor shall:
[...]
2. Paragraphs 4(1)(3)(1)(b), 7, 9 and 11 to 13 apply to credit agreements in which credit is subject to the giving of security by way of a charge on immovable property and is granted on the usual terms for credits secured by a charge on immovable property and the intermediate financing of the same ...”
Paragraph 9 of the Consumer Credit Act provides:
“1. A purchase agreement constitutes a transaction linked with the credit agreement if the credit serves to finance the purchase price and both agreements are to be regarded as a single economic unit. In particular, a single economic unit shall be presumed where the lender relies on the seller’s cooperation in the preparation or conclusion of the credit agreement.
2. The consumer’s declaration of intention to conclude the linked purchase agreement shall be valid only if the consumer does not revoke ... his declaration of intention to conclude the credit agreement.
The notice concerning the right of cancellation ... must state that, in the event of cancellation, the purchase agreement linked with the credit agreement will not be valid either ... If the net amount of the credit has already been paid to the seller, the lender shall, in relation to the consumer and with regard to the legal effects of cancellation, be subrogated to the seller’s rights and obligations arising from the purchase agreement [...]”
On 14 June 2004 the 2nd Chamber of the Federal Court of Justice (II ZR 392/01 and II ZR 374/02) decided that a declaration to accede to a closed property fund was a transaction linked with a credit agreement within the meaning of paragraph 9 of the Consumer Credit Act, if the fund and the bank used a common marketing organisation. If the consumer had been deceived with respect to the profitability of the fund, he would not be obliged to repay the loan but merely to transfer to the bank his share of the funds and his compensation claims.
On 05 May 2008 the 2nd Chamber of the Federal Court of Justice (II ZR 292/06) decided to refer the question whether the legal effects of the cancellation of a declaration of accession to a property fund according to German corporate law was in accordance with Community law for a preliminary ruling to the ECJ. The application of the corporate law rules resulted in the consumer being bound to participate in the fund’s business developments for the period from his accession to giving notice of its cancellation according to the HWiG. The 2nd Chamber observed that the mere ex nunc effect of the cancellation according to corporate law was justified in its opinion as it safeguarded not merely the interests of the debtees of the fund but also of the other members of the fund who were typically also consumers.
According to the established case-law of the 11th Chamber of the Federal Court of Justice a secured credit agreement and a property purchase contract could, pursuant to paragraph 3 (2) of the VerbrKrG, not be regarded as linked transactions within the meaning of Paragraph 9 of the Consumer Credit Act. In case of the cancellation of a secured credit agreement according to the HWiG the consumer was obliged to repay the loan immediately in full, plus interest at the market rate. The cancellation of the secured credit agreement did not affect the validity of the purchase contract for immovable property financed by that credit agreement.
In its judgment in Case C-481/99 Heininger [2001] ECR I-9945, the ECJ held that the Council Directive 85/577/EEC of 20 December 1985 to protect the consumer in respect of contracts negotiated away from business premises (the Directive) applied to secured credit agreements, that is to say, credit agreements for financing the purchase of immovable property.
In its judgments of 25 October 2005 in Cases C-350/03 Elisabeth Schulte and Wolfgang Schulte v. Deutsche Bausparkasse Badenia AG and C-229/04 Crailsheimer Volksbank eG v. Klaus Konrads and Others the ECJ held:
With respect to the judgments of the ECJ of 25 October 2005 the 11th Chamber of the Federal Court of Justice developed its case-law. In its judgment of 16 May 2006 (XI ZR 6/04) it reiterated that a secured credit agreement and the property purchase contract did not constitute a linked transaction within the meaning of Paragraph 9 of the VerbrKrG. It found that the consumer did not have a compensation claim on account of the bank’s failure to inform him of his right of cancellation, if the property purchase contract had been concluded before the loan agreement. In this case informing the consumer of his right of cancellation would not have enabled the consumer to avoid exposure to the risks inherent in investments. Therefore, there was no causal link which would allow the consumer to claim damages. However, it found that in the case of institutionalised cooperation between the seller and the financing bank, when the seller or intermediary salesperson also arranged the finances for the investment, and the information provided by the seller or intermediary salesperson would have been obviously incorrect, the financing bank’s knowledge of the seller’s malicious deceit would be presumed. Under these circumstances the bank would have a duty of disclosure with regard to the profitability of the investment. Non-compliance with this duty would give rise to financial liability on the part of the bank.
Pursuant to section 78 § 1 of the Code of Civil Procedure representation by counsel is compulsory for the parties in civil proceedings before the Regional Court, the Court of Appeal and the Federal Court of Justice.
The conditions for legal aid are laid down in section 114 of the Code of Civil Procedure. According to that section, a party who in view of his or her personal and economic situation cannot afford the costs for conducting the proceedings is granted legal aid upon application if the intended legal action offers sufficient prospects of success and does not appear wanton (mutwillig). A party who has been granted legal aid is officially appointed a lawyer of his or her choice who is ready to represent him or her if representation by counsel is compulsory (section 121 § 1 of the Code of Civil Procedure). It is the court having jurisdiction to deal with the intended action itself which is called to decide on motions for legal aid (section 127 § 1 of the Code of Civil Procedure). An appeal lies against a decision refusing legal aid (section 127 § 2 of the Code of Civil Procedure).


ITEMID: 001-87768
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: GORDON v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicant, Mr Kenneth Gordon, is a British national who was born in 1954 and lives in Glasgow. He was represented before the Court by Pierce Glynn, solicitors in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant’s wife died on 19 March 2000. His claim for widows’ benefits was made on 27 March 2000 and was rejected on 4 April 2000 on the ground that he was not entitled to widows’ benefits because he was not a woman. The applicant did not appeal as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under United Kingdom law.
The domestic law relevant to this application is set out in Willis v. the United Kingdom, no. 36042/97, §§ 14-26, ECHR 2002-IV and Runkee and White v. the United Kingdom nos. 42949/98 and 53134/99, 25 July 2007).


ITEMID: 001-109200
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: COMMITTEE
DATE: 2012
DOCNAME: CASE OF KRAVCHENKO v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Article 5 - Right to liberty and security (Article 5-1-c - Bringing before competent legal authority)
JUDGES: Angelika Nußberger;Ann Power-Forde
TEXT: 4. The applicant was born in 1968. From November 1997 to June 2004 he held a post of customs inspector in Feodosiya.
5. On 13 October 2004 the applicant was arrested and placed in the Temporary Investigative Isolation Unit (“SIZO”) of Simferopol. Later on, he was moved to the Zaporizhzhya SIZO.
6. On 15 October 2004 the Feodosiya Town Court (“the Town Court”) remanded the applicant in custody in view of the pending criminal investigations against him. The court noted in particular that the applicant was charged with a serious crime for which he was liable to a penalty of over three years’ imprisonment, and that he was unemployed. The court held, without giving any further details, that there were grounds to believe that, if left at liberty, the applicant would seek to evade investigation and trial, and obstruct the establishment of the truth in his criminal case.
7. By resolutions of the Town Court and the Kyiv Court of Appeal of 8 December 2004, 8 February, 30 March, 8 July and 7 December 2005, the maximum period of the applicant’s detention was extended, respectively, to four months, six months, nine months, thirteen months, and fourteen months and twelve days, in view of the pending criminal investigations against him. The courts put forward similar reasons for the applicant’s continued detention as in the order of 15 October 2004, and held that there were no grounds for altering the preventive measure applied in the applicant’s respect. In the resolutions of 8 July and 7 December 2005 the courts also noted that the applicant had been studying the case file. By the latter resolution, he was given a time-limit, until 20 December 2005, to complete his study of the file.
8. On 25 December 2005, the applicant requested the Simferopol SIZO administration to be released, stating that there was no formal decision authorising his detention after 25 December 2005. On 27 December 2005 the request was refused on the ground that his continuing detention was governed by Article 156 of the Code of Criminal Procedure and that his criminal case had been referred to the court for trial on 23 December 2005.
9. On an unspecified date the Shevchenkivsky District Court of Zaporizhzhya (“the District Court”) received the case.
10. On 3 March 2006 the applicant lodged with that court a petition alleging, among other things, that his continuing detention was unlawful.
11. On 20 March 2006 the District Court rejected his petition and ordered him to remain in detention, stating that there were no grounds for changing the preventive measure. The court’s order, containing no further explanations or a time-limit for the applicant’s detention, was not subject to appeal.
12. On 25 October 2007 the District Court rejected another petition for his release by the applicant relying, in particular, on a letter written by prosecutors according to which there was intelligence gathered suggesting that the applicant prepared documents to leave the country. It also relied on information obtained during the hearings indicating that the applicant intended to change his citizenship. The court did not set a time-limit for the applicant’s detention. According to the applicant, the case file contained no documents or other evidence corroborating his intention to leave the country. As to the issue of citizenship, he stated that he had applied for renunciation of the Ukrainian citizenship.
13. In a judgment of 8 November 2007 the District Court convicted the applicant as charged and sentenced him to nine years and six months’ imprisonment with confiscation of all his property. It also stripped him of his service rank and limited his right to serve in law-enforcement agencies.
14. On 23 June 2008 the Zaporizhzhya Regional Court of Appeal (“the Court of Appeal”) changed the first-instance court’s judgment. While upholding the applicant’s conviction for abuse of office, organised crime, and forgery of official documents, the court discontinued the proceedings concerning the charges of bribery and remitted the case concerning the charges of tax evasion for additional investigation. It also reduced the applicant’s prison sentence to five years.
15. On 22 October 2009 the Supreme Court quashed the appellate court’s judgment and remitted the case for fresh appellate review.
16. On 19 April 2010 the Court of Appeal quashed the first-instance judgment and remitted the case to the District Court. It also ordered further detention of the applicant. According to the latter’s submissions, the case is pending before the District Court.
17. According to Article 89 of the Code of Criminal Procedure, when time limits are calculated, the day from which they start running are not taken into account. When a time limit is expressed in days, it ends at midnight of the last day.
18. Other materials pertinent to the issue of lawfulness of the applicant’s detention are summarised in the judgments in the cases of Nevmerzhitsky v. Ukraine (no. 54825/00, §§ 53-54, ECHR 2005II (extracts)) and Yeloyev v. Ukraine (no. 17283/02, § 35, 6 November 2008).
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1
VIOLATED_BULLETPOINTS: 5-1-c


ITEMID: 001-4910
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: ANDERSON v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant is Scottish and a British national, born in 1938 and living in Scotland.
A.
The applicant lives on the Isle of Skye an island situated on the north-west coast of Scotland. This island was linked to the mainland by ferry until 1995 when a bridge was built. The bridge is controlled by a private company and provides the only year round access and is subject to a toll. Refusal to pay the toll is a criminal offence.
The applicant was charged in the Sheriff Court at Dingwall on a summary complaint containing five charges. The court was 130 miles away from the applicant’s home although there is a court at Portree on the island of Skye. The first offence was committed on 17 October 1995. Each charge involved a contravention of section 38(1) of the New Roads and Street Works Act 1991 (“the 1991 Act”). The charges were that on the Skye Bridge crossing near the toll-booth, the applicant, being liable to pay a toll by virtue of the Invergarry-Kyle of Lockalsh Trunk Road (A87) Extension (Skye Bridge Crossing) Toll Order 1992, without reasonable excuse refused to pay the toll.
There were about 150 other people charged at the same time as the applicant, but most people have had the charges against them dropped. The applicant did get legal aid in the form of emergency cover in the Sheriff Court.
When the applicant appeared in answer to the complaint, pleas as to competency and relevancy were put forward on 1 March 1996 but rejected by the Sheriff on 8 March 1996, and he adjourned the diet for trial, which took place on 11 April 1996. The applicant complained that on each occasion he had a reasonable excuse why he should not pay the toll. The sheriff found that the applicant’s arguments did not amount to an objective reason or reasonable excuse of any kind. All of the applicant’s reasons were subjective. The sheriff found the applicant guilty of all five charges; he imposed fines on each of the charges and ordered recovery of the fines by civil diligence.
In this case the Concession Agreement was entered into by the Secretary of State and Skye Bridge Tolls Limited on 16 December 1991. In that agreement the Secretary of State assigned the right under and in terms of the Toll Order to charge and collect tolls during the concession period, which was stated to commence on the date of issue of the Permit to Use for the crossing. On the same date those parties signed a Development Agreement which provided that on the completion of the crossing the developer would be granted the right to collect and retain tolls and operate and maintain the crossing. The agreement also provided that, following an inspection of the bridge on completion, the Secretary of State, if satisfied all was in order, would issue a Permit to Use.
The Invergarry-Kyle of Lockalsh Trunk Road (A87) Extension (Skye Bridge Crossing) Toll Order 1992 (“the Toll Order”) was made on 23 June 1992 and came into force on 26 June 1992. The Permit to Use was signed on 16 October 1995.
The applicant appealed against both conviction and sentence but subsequently only proceeded with the former appeal. On the day before the hearing the applicant was informed that he was to be granted legal aid.
The first ground of appeal was that the proceedings were incompetent since Skye Bridge Tolls Limited (who subsequently changed their name to Skye Bridge Limited) had no proper assignation of the right to collect tolls. In the Concession Agreement the Secretary of State had purported to assign the right to charge and collect tolls to Skye Bridge Tolls Limited as the Concessionaire but that purported assignation was void as the Secretary of State did not have the power to grant an assignation at that time (it was prior to the existence of the Toll Order).
On 12 November 1996 the Edinburgh Appeal Court found that there was nothing in the 1991 Act to prohibit an assignation of this type being made before execution of the Toll Order and rejected this ground of appeal. They felt it was clear from section 27(7) of the 1991 Act that it was envisaged that the contract with the developer would pre-date the Toll Order. The Court found that in effect the terms of the Concession Agreement were that there would be no transfer of the Secretary of State’s right to charge tolls until the Toll Order was made. Further at common law it was possible to grant an assignation of a right in anticipation of it coming into existence.
The second ground of appeal was that the copies of the Concession Agreement and Development Agreement provided were incomplete and this was unfair to the applicant. The Appeal Court
The third ground of appeal was that it had not been established that the collection of the tolls was made by a person duly authorised by the concessionaire (the Skye Bridge Tolls Limited). The Court rejected this saying that it was reasonable to infer that the men in the toll booths had authority to collect tolls, and that by driving into the lane which was not appropriate for the toll barrier the applicant was seeking to by-pass the toll barrier and was thus refusing to pay the toll. In the circumstances the toll collectors were acting with ostensible authority and must be presumed to have been duly authorised. In any event on four occasions the bridge manager himself and on one occasion the bridge supervisor personally asked the applicant to pay and he refused.
During 1996 and 1997 the applicant was called to Dingwall court at least 14 times and went to the appeal court once. He was charged with non-payment on each occasion he refused to pay the fine during this period. On 4 December 1996 the applicant failed to appear at one of the intermediate hearing diets because he never received notification of the hearing. He was as a result arrested and held overnight in the cells. Subsequent to this in 1998 the Government enacted retrospective legislation to prevent the use of multiple intermediate diets to continue a case. He was in fact detained overnight in police cells three times and in prison for 11 days. The appeal was therefore dismissed.
On his arrest the applicant was driven 70 miles to the police station at speed and suffered pain from an old back injury and on one occasion on arrival sought pain killers from the police doctor. He had to give up his property, and was placed in a cell with a thin mattress and non-flushable toilet. He was given water and no other drink on the day of arrest. The next morning he ate his breakfast standing by the open toilet and was only allowed to wash in a sink under guard.
On 14 January 1998 the applicant wrote to the Secretary of State for Scotland seeking a review of his case because in other identical cases the prosecution submitted in evidence sections of the documents deemed to be irrelevant in his case. The Secretary of State replied on 5 August 1998 having investigated the allegations made. He concluded that the applicant was mistaken in that the documents produced by the Crown in the other cases were exactly the same as in the applicant’s case. Any additional material had been introduced by the defendants. There was nothing to suggest a miscarriage of justice.
On 16 and 19 February 1998 the applicant was charged and on 25 March 1998 the applicant was found guilty of a road traffic offence following his stopping at the toll barrier and refusing to pay the toll. The police charged him with obstruction as they had been told not to charge anyone under the Toll Order any longer. The applicant was legally represented and submitted a writ of suspension and appeal.
On 15 April 1998 the applicant also wrote to a Member of Parliament complaining about the number of people imprisoned for refusing to pay tolls, the number of intermediate diets which were fixed against him, and the lack of legal aid. The Lord Advocate replied confirming that the applicant was remanded in custody because of his repeated failure to appear in court. He was not sentenced to imprisonment as punishment on conviction for an offence. The law in respect of intermediate diets was amended in 1998. In respect of the lack of legal aid it was pointed out that he was convicted after trial on four separate occasions and his first two appeals went to a full hearing. At one of those the applicant was represented by counsel.
On 11 March 1999 the applicant did not attend court in Dingwall because he refused to pay the toll on the Skye Bridge. On 18 March 1999 the applicant wrote to the Secretary of Scotland complaining about this event. There was a further trial on this charge on 1 April 1999 relating to another charge of obstruction.
B. Relevant domestic law and practice
A summary of the relevant provisions of section 27, 28 and 38 New Roads and Street Works Act 1991 is as follows:
Section 27
(1) and (2) This empowers the Secretary of State to make a toll order relating to a special road to be provided by the Secretary of State (such as the Skye Bridge). The power is exercisable by statutory instrument and there is no requirement for Parliamentary approval.
(5) This provides that the toll order and the special road scheme are to proceed in tandem.
(7) This envisages that the Secretary of State (where he is the roads authority) may enter a contract for the design or construction of a road which both parties intend will be subject to a toll order.
Section 28
(1) This states that the toll order may authorise the Secretary of State to assign his right to charge and collect tolls.
Section 38
It is an offence, without reasonable excuse, to refuse, fail to pay or evade a toll which a person is liable to pay by virtue of a toll order.


ITEMID: 001-5602
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: CAGLAR v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Antonio Pastor Ridruejo
TEXT: The applicant, a Turkish national born in 1946, lives in Ober-Ramstadt (Germany). He is represented before the Court by Mrs Antje Martens, a lawyer practising in Ober-Ramstadt.
On 9 September 1971 the applicant entered Germany by virtue of the Agreement concluded on 30 October 1961 between the Government of the Federal Republic of Germany and the Government of the Republic of Turkey on the recruitment of Turkish workers. The applicant was granted the appropriate work and residence permits. On 17 September 1987 he was granted a residence permit of unlimited duration.
The applicant was first employed by a company in Rohrbach. Thereafter he worked in various restaurants.
The applicant’s wife entered Germany in 1972 with the couple’s three children born in Turkey in 1964, 1968 and 1970. She holds a permanent residence permit.
On 12 July 1988 the applicant was arrested and detained pending trial on suspicion of being implicated in a case of drug trafficking.
By a judgment of 6 November 1991, which subsequently became final, the Darmstadt Regional Court (Landgericht) convicted the applicant of illegal drug trafficking and sentenced him to seven years’ imprisonment. The applicant’s accomplice was convicted of illegal drug trafficking and attempted importation of narcotics and sentenced to seven years’ and three months’ imprisonment. The court found that the applicant who was not a drug addict, had bought together with his accomplice, a co-national, approximately 1,000 grams of heroin for the price of 70,000 German marks. In March/April 1987 a third person supplied them with two samples of respectively half a gram of heroin. Not being satisfied with the quality, they refused to buy a larger amount. One month later further negotiations took place with the same person and with the same result. As from August 1987 the applicant’s accomplice sold several times altogether about 100 grams of heroin in quantities of 5 to 14.5 grams. According to the court, the applicant and his accomplice acted in a professional way to the detriment of the health and life of numerous drug addicts.
Since 10 September 1992 the applicant served his sentence in the Darmstadt prison. He was granted day parole release and worked for a private enterprise in Weiterstadt. On 24 February 1993 the Darmstadt Regional Court ordered the applicant’s release on probation. The applicant was released on 4 March 1993. He was employed by the private enterprise until 31 August 1993.
After having heard the applicant on several occasions, the Darmstadt-Dieburg Administrative Authorities ordered the applicant’s expulsion on 1 December 1993 and invited him to leave Germany within three months. The decision to expel the applicant was based on Sections 47 and 48 of the Aliens Act (Ausländergesetz) according to which an alien is to be expelled when he has been sentenced to a minimum of five years’ imprisonment and serious reasons of public safety and order justify his expulsion. The Administrative Authorities pointed out that the applicant had been convicted of drug offences, sentenced to seven years’ imprisonment and it considered that his expulsion had to be ordered on general preventive grounds having the objective of deterring other aliens. Furthermore, the applicant’s personal conduct when committing the offences indicated a specific risk of re-offending. The Administrative Authorities noted that the applicant’s wife lived for many years in Germany and was granted a residence permit. However, a medical examination did not show that she suffered from psychiatric health problems, as was alleged by the applicant. The couple’s three children were of full age and sufficiently independent to organise their life without their father. The Administrative Authorities concluded that the applicant’s expulsion was justified by the public interest, which had greater importance than the applicant’s personal interest to stay in Germany.
Following the partial dismissal of his objection (Widerspruch), the applicant brought the case before the Darmstadt Administrative Court (Verwaltungsgericht).
On 3 March 1998 the Administrative Court dismissed the applicant’s claim to have the expulsion order revoked. The court considered that the applicant’s conviction of drug trafficking and his term of emprisonment of seven years reflected a serious breach of public order. The applicant had direct and narrow connections with drug dealers and the drug scene. He had acted in a professional manner as was shown by the quantity of the heroin and the fact that in March/April 1987 he and his accomplice twice refused to accept offers to buy heroin because of its unsatisfactory quality. This also proved that the applicant had a profound knowledge of drugs and did not accept bad quality. Furthermore, the heroin was sold in quantities of five to ten grams during a longer period and the deals were concluded generally in the restaurants in which the applicant was employed. Finally it had to be taken into account that the applicant did not make his confession until very late in the proceedings, namely when he realised that he had no other choice. For that reason, his sentence was relatively more severe than that of his accomplice. The court added that there was no doubt that offences such as illegal heroin trafficking, because of the danger they present for the health of the users and the widespread drug-related criminality, constituted a particularly serious threat to public safety and justified the expulsion of aliens who contravened the laws on drugs for the purpose of deterring other aliens. The court found that the applicant’s conduct which gave rise to his conviction was evidence of a genuine and sufficiently serious risk that he might commit further drug offences. Furthermore, there was no indication of exceptional circumstances that would justify non-expulsion. The court noted that the applicant had been integrated into Germany after having lived there for more than 26 years with his wife and other close members of his family, and that he had been legally employed there for years. The court considered, however, that a foreign national could be denied the right to the protection of his marriage on the basis of general preventive grounds if he had committed drug offences. The applicant’s case was therefore not different from that of other aliens who after a long stay had to leave the country for having committed serious offences.
Moreover, the Administrative Court found that the interference with the applicant’s right to respect for his private and family life, as guaranteed by Article 8 § 1 of the Convention, did not infringe the principle of proportionality. The measure complained of was not disproportionate to the seriousness of the offences committed by the applicant and was thus justified under paragraph 2 of this provision.
On 25 June 1998 the applicant filed a request for leave to appeal (Antrag auf Zulassung der Berufung).
On 28 April 1999 the Hessen Administrative Court of Appeal (Hessischer Verwaltungsgerichtshof) dismissed this request and on 4 November 1999 rejected the applicant’s request to reconsider this decision.
On 22 November 1999 a panel of three judges of the Federal Constitutional Court (Bundesverfassungsgericht) declined to accept the applicant’s constitutional complaint for adjudication and on 4 February 2000 declined to accept for adjudication the applicant’s constitutional complaint against the communication of the Hessen Administrative Court of Appeal of 4 November 1999.
In the meantime, on 10 June 1999, the Darmstadt-Dieburg Administrative Authorities had informed the applicant that he would be expelled to Turkey if he did not to leave Germany before 15 July 1999.
On 2 July 1999 the applicant filed an objection against this decision. He submitted that he had not committed any offence after his conviction in 1991. His personal conduct did thus not indicate any specific risk to the requirements of public order and safety. Furthermore, his wife suffered from serious psychiatric health problems and needed his help. According to him, his expulsion could not be justified only on the basis of general grounds of prevention.
On 7 January 2000 the applicant applied for an interim injunction (einstweilige Anordnung) requesting to stay his expulsion pending the administrative proceedings.
On 12 May 2000 the Darmstadt Administrative Court dismissed the request. It confirmed the decision to expel the applicant to Turkey reaffirming that the applicant’s personal interest to stay in Germany did not outweigh the public interest to expel him.
On 4 October 2000 the Hessen Administrative Court of Appeal dismissed the applicant’s request for leave to appeal (Antrag auf Zulassung der Beschwerde).
On 3 November 2000 the applicant filed a constitutional complaint against this decision and applied for an interim injunction. These proceedings are still pending.


ITEMID: 001-72952
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF CUNDRIC v. SLOVENIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses award - Convention proceedings
JUDGES: David Thór Björgvinsson;John Hedigan
TEXT: 5. The applicant was born in 1947 and lives in Bohinjska Bistrica.
6. The case concerns three set of proceedings resulting from the dismissal of the applicant from his office in 1994, subsequent transfer to other posts and, ultimately, the termination of his employment in 1998. During the proceedings the applicant urged different authorities to accelerate the proceedings, including the Petition’s Commission of the Parliament, the Ombudsman for Human Rights and the Higher Labour and Social Court.
7. On 14 March 1994 the applicant’s employer A dismissed the applicant from a job position of a technical director and on 15 March 1994 transferred him to a new post.
8. On 28 February 1994 the applicant instituted proceedings against A in the Ljubljana Labour and Social Court (Delovno in socialno sodišče v Ljubljani) seeking, inter alia, the annulment of the above mentioned decisions.
Of the seven hearings held between 17 February 1995 and 10 September 1997, none was adjourned at the request of the applicant.
On 4 June 1997 the applicant requested the exclusion of a judge from the proceedings, which was rejected on 2 July 1997.
At the last hearing, the court decided to deliver a written judgment. The judgment, rejecting the applicant’s claim, was served on the applicant on 17 October 1997.
9. On 24 October 1997 the applicant appealed to the Higher Labour and Social Court (Višje delovno in socialno sodišče). On 4 May he made a request to speed up the proceedings.
On 14 January 2000 the court allowed the applicant’s appeal and remitted the case to the first-instance court for re-examination.
10. In the meanwhile, on 16 November 1998, the applicant lodged a constitutional appeal with the Constitutional Court (Ustavno Sodišče), which was rejected on 2 February 1999 as premature.
11. In the re-examination proceedings, of the four hearings held between 20 June 2000 and 15 October 2001, one was adjourned due to the applicant’s modification of the claim.
At the last hearing, the court decided to deliver a written judgment. The judgment, upholding the applicant’s claim in part, was served on the applicant on 27 November 2001.
12. On 5 December 2001 the applicant appealed to the Higher Labour and Social Court.
On 24 September 2004 the court in part upheld the first-instance court judgment and in part remitted the case to the first-instance court for re-examination.
The Higher Labour and Social Court’s judgment was served on the applicant on 9 February 2005.
13. On 5 March 2005 the applicant lodged an appeal on points of law with the Supreme Court (Vrhovno sodišče) against the part of the Higher Court’s judgment upholding the first-instance court judgment.
The proceedings are pending in part before the Supreme Court and in part on the first instance.
14. On 9 November 1998 the applicant was again transferred to a new post.
15. On 22 December 1998 the applicant instituted proceedings against A in the Ljubljana Labour and Social Court seeking annulment of the above decision on transfer and payment of the loss in his salary.
On 9 January 2002 the court held a hearing.
After the hearing, the court delivered a judgment, in which it excluded from the proceedings the part of the claim concerning the difference in the salary, which was joined with the third set of the proceedings, and rejected the remainder of the applicant’s claim.
16. On 7 March 2002 the applicant appealed to the Higher Labour and Social Court.
On 29 January 2004 the court dismissed the applicant’s appeal.
The judgment was served on the applicant on 15 March 2004.
17. On 10 April 2004 the applicant lodged an appeal on points of law with the Supreme Court.
On 15 February 2005 the court dismissed the applicant’s appeal.
The judgment was served on the applicant on 2 March 2005.
3. The third set of proceedings
18. Ultimately, on 30 December 1998, A dismissed the applicant from work and on 17 March 1999 terminated his employment.
19. On 30 March 1999 the applicant instituted civil proceedings in the Ljubljana Labour and Social Court seeking the annulment of that decision and recognition of continuation of his employment.
Of the two hearings held on 9 January 2002 and 5 February 2002, neither was adjourned at the request of the applicant.
At the last hearing, the court delivered a judgment, rejecting the applicant’s claim.
20. On 22 March 2002 the applicant appealed to the Higher Labour and Social Court.
On 2 April 2004 the court dismissed the applicant’s appeal.
The judgment was served on the applicant on 4 May 2004.
21. On 11 May 2004 the applicant lodged an appeal on points of law with the Supreme Court.
On 15 February 2005 the court dismissed the applicant’s appeal.
The judgment was served on the applicant on 2 March 2005.
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-60596
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: GRANDCHAMBER
DATE: 2002
DOCNAME: CASE OF CHRISTINE GOODWIN v. THE UNITED KINGDOM
IMPORTANCE: 1
CONCLUSION: Violation of Art. 8;Violation of Art. 12;No separate issue under Art. 14;No violation of Art. 13;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
JUDGES: Luzius Wildhaber;Nicolas Bratza;Paul Mahoney
TEXT: 12. The applicant is a United Kingdom citizen born in 1937 and is a post-operative male to female transsexual.
13. The applicant had a tendency to dress as a woman from early childhood and underwent aversion therapy in 1963-64. In the mid-1960s, she was diagnosed as a transsexual. Though she married a woman and they had four children, her conviction was that her “brain sex” did not fit her body. From that time until 1984 she dressed as a man for work but as a woman in her free time. In January 1985, the applicant began treatment in earnest, attending appointments once every three months at the Gender Identity Clinic at the Charing Cross Hospital, which included regular consultations with a psychiatrist as well as on occasion a psychologist. She was prescribed hormone therapy, began attending grooming classes and voice training. Since this time, she has lived fully as a woman. In October 1986, she underwent surgery to shorten her vocal chords. In August 1987, she was accepted on the waiting list for gender re-assignment surgery. In 1990, she underwent gender re-assignment surgery at a National Health Service hospital. Her treatment and surgery was provided for and paid for by the National Health Service.
14. The applicant divorced from her former wife on a date unspecified but continued to enjoy the love and support of her children.
15. The applicant claims that between 1990 and 1992 she was sexually harassed by colleagues at work. She attempted to pursue a case of sexual harassment in the Industrial Tribunal but claimed that she was unsuccessful because she was considered in law to be a man. She did not challenge this decision by appealing to the Employment Appeal Tribunal. The applicant was subsequently dismissed from her employment for reasons connected with her health, but alleges that the real reason was that she was a transsexual.
16. In 1996, the applicant started work with a new employer and was required to provide her National Insurance (“NI”) number. She was concerned that the new employer would be in a position to trace her details as once in the possession of the number it would have been possible to find out about her previous employers and obtain information from them. Although she requested the allocation of a new NI number from the Department of Social Security (“DSS”), this was rejected and she eventually gave the new employer her NI number. The applicant claims that the new employer has now traced back her identity as she began experiencing problems at work. Colleagues stopped speaking to her and she was told that everyone was talking about her behind her back.
17. The DSS Contributions Agency informed the applicant that she would be ineligible for a State pension at the age of 60, the age of entitlement for women in the United Kingdom. In April 1997, the DSS informed the applicant that her pension contributions would have to be continued until the date at which she reached the age of 65, being the age of entitlement for men, namely April 2002. On 23 April 1997, she therefore entered into an undertaking with the DSS to pay direct the NI contributions which would otherwise be deducted by her employer as for all male employees. In the light of this undertaking, on 2 May 1997, the DSS Contributions Agency issued the applicant with a Form CF 384 Age Exemption Certificate (see Relevant domestic law and practice below).
18. The applicant's files at the DSS were marked “sensitive” to ensure that only an employee of a particular grade had access to her files. This meant in practice that the applicant had to make special appointments for even the most trivial matters and could not deal directly with the local office or deal with queries over the telephone. Her record continues to state her sex as male and despite the “special procedures” she has received letters from the DSS addressed to the male name which she was given at birth.
19. In a number of instances, the applicant stated that she has had to choose between revealing her birth certificate and foregoing certain advantages which were conditional upon her producing her birth certificate. In particular, she has not followed through a loan conditional upon life insurance, a re-mortgage offer and an entitlement to winter fuel allowance from the DSS. Similarly, the applicant remains obliged to pay the higher motor insurance premiums applicable to men. Nor did she feel able to report a theft of 200 pounds sterling to the police, for fear that the investigation would require her to reveal her identity.
20. Under English law, a person is entitled to adopt such first names or surname as he or she wishes. Such names are valid for the purposes of identification and may be used in passports, driving licences, medical and insurance cards, etc. The new names are also entered on the electoral roll.
21. Under English law, marriage is defined as the voluntary union between a man and a woman. In the case of Corbett v. Corbett ([1971] Probate Reports 83), Mr Justice Ormrod ruled that sex for that purpose is to be determined by the application of chromosomal, gonadal and genital tests where these are congruent and without regard to any surgical intervention. This use of biological criteria to determine sex was approved by the Court of Appeal in R. v. Tan ([1983] Queen's Bench Reports 1053) and given more general application, the court holding that a person born male had been correctly convicted under a statute penalising men who live on the earnings of prostitution, notwithstanding the fact that the accused had undergone gender reassignment therapy.
22. Under section 11(b) of the Matrimonial Causes Act 1973, any marriage where the parties are not respectively male and female is void. The test applied as to the sex of the partners to a marriage is that laid down in the above-mentioned case of Corbett v. Corbett. According to that same decision a marriage between a male-to-female transsexual and a man might also be avoided on the basis that the transsexual was incapable of consummating the marriage in the context of ordinary and complete sexual intercourse (obiter per Mr Justice Ormrod).
This decision was reinforced by Section 12(a) of the Matrimonial Causes Act 1973, according to which a marriage that has not been consummated owing to the incapacity of either party to consummate may be voidable. Section 13(1) of the Act provides that the court must not grant a decree of nullity if it is satisfied that the petitioner knew the marriage was voidable, but led the respondent to believe that she would not seek a decree of nullity, and that it would be unjust to grant the decree.
23. Registration of births is governed by the Births and Deaths Registration Act 1953 (“the 1953 Act”). Section 1(1) of that Act requires that the birth of every child be registered by the Registrar of Births and Deaths for the area in which the child is born. An entry is regarded as a record of the facts at the time of birth. A birth certificate accordingly constitutes a document revealing not current identity but historical facts.
24. The sex of the child must be entered on the birth certificate. The criteria for determining the sex of a child at birth are not defined in the Act. The practice of the Registrar is to use exclusively the biological criteria (chromosomal, gonadal and genital) as laid down by Mr Justice Ormrod in the above-mentioned case of Corbett v. Corbett.
25. The 1953 Act provides for the correction by the Registrar of clerical errors or factual errors. The official position is that an amendment may only be made if the error occurred when the birth was registered. The fact that it may become evident later in a person's life that his or her “psychological” sex is in conflict with the biological criteria is not considered to imply that the initial entry at birth was a factual error. Only in cases where the apparent and genital sex of a child was wrongly identified, or where the biological criteria were not congruent, can a change in the initial entry be made. It is necessary for that purpose to adduce medical evidence that the initial entry was incorrect. No error is accepted to exist in the birth entry of a person who undergoes medical and surgical treatment to enable that person to assume the role of the opposite sex.
26. The Government point out that the use of a birth certificate for identification purposes is discouraged by the Registrar General, and for a number of years birth certificates have contained a warning that they are not evidence of the identity of the person presenting it. However, it is a matter for individuals whether to follow this recommendation.
27. A transsexual continues to be recorded for social security, national insurance and employment purposes as being of the sex recorded at birth.
28. The DSS registers every British citizen for National Insurance purposes (“NI”) on the basis of the information in their birth certificate. Non-British citizens who wish to register for NI in the United Kingdom may use their passport or identification card as evidence of identity if a birth certificate is unavailable.
29. The DSS allocates every person registered for NI with a unique NI number. The NI number has a standard format consisting of two letters followed by three pairs of numbers and a further letter. It contains no indication in itself of the holder's sex or of any other personal information. The NI number is used to identify each person with a NI account (there are at present approximately 60 million individual NI accounts). The DSS are thereby able to record details of all NI contributions paid into the account during the NI account holder's life and to monitor each person's liabilities, contributions and entitlement to benefits accurately. New numbers may in exceptional cases be issued to persons e.g. under the witness protection schemes or to protect the identity of child offenders.
30. Under Regulation 44 of the Social Security (Contributions) Regulations 1979, made under powers conferred by paragraph 8(1)(p) of Schedule 1 to the Social Security Contributions and Benefits Act 1992, specified individuals are placed under an obligation to apply for a NI number unless one has already been allocated to them.
31. Under Regulation 45 of the 1979 Regulations, an employee is under an obligation to supply his NI number to his employer on request.
32. Section 112(1) of the Social Security Administration Act 1992 provides:
“(1) If a person for the purpose of obtaining any benefit or other payment under the legislation ...[as defined in section 110 of the Act]... whether for himself or some other person, or for any other purpose connected with that legislation -
(a) makes a statement or representation which he knows to be false; or
(b) produces or furnishes, or knowingly causes or knowingly allows to be produced or furnished, any document or information which he knows to be false in a material particular, he shall be guilty of an offence.”
33. It would therefore be an offence under this section for any person to make a false statement in order to obtain a NI number.
34. Any person may adopt such first name, surname or style of address (e.g. Mr, Mrs, Miss, Ms) that he or she wishes for the purposes of the name used for NI registration. The DSS will record any such amendments on the person's computer records, manual records and NI number card. But, the DSS operates a policy of only issuing one NI number for each person regardless of any changes that occur to that person's sexual identity through procedures such as gender re-assignment surgery. A renewed application for leave to apply for judicial review of the legality of this policy brought by a male-to-female transsexual was dismissed by the Court of Appeal in the case of R v. Secretary of State for Social Services ex parte Hooker (1993) (unreported). McCowan LJ giving the judgment of the Court stated (at page 3 of the transcript):
“...since it will not make the slightest practical difference, far from the Secretary of State's decision being an irrational one, I consider it a perfectly rational decision. I would further reject the suggestion that the applicant had a legitimate expectation that a new number would be given to her for psychological purposes when, in fact, its practical effect would be nil.”
35. Information held in the DSS NI records is confidential and will not normally be disclosed to third parties without the consent of the person concerned. Exceptions are possible in cases where the public interest is at stake or the disclosure is necessary to protect public funds. By virtue of Section 123 of the Social Security Administration Act 1992, it is an offence for any person employed in social security administration to disclose without lawful authority information acquired in the course of his or her employment.
36. The DSS operates a policy of normally marking records belonging to persons known to be transsexual as nationally sensitive. Access to these records is controlled by DSS management. Any computer printer output from these records will normally be referred to a special section within the DSS to ensure that identity details conform with those requested by the relevant person.
37. NI contributions are made by way of deduction from an employee's pay by the employer and then by payment to the Inland Revenue (for onward transmission to the DSS). Employers at present will make such deductions for a female employee until she reaches the pensionable age of 60 and for a male employee until he reaches the pensionable age of 65. The DSS operates a policy for male-to-female transsexuals whereby they may enter into an undertaking with the DSS to pay direct to the DSS any NI contributions due after the transsexual has reached the age of 60 which have ceased to be deducted by the employer in the belief that the employee is female. In the case of female-to-male transsexuals, any deductions which are made by an employer after the age of 60 may be reclaimed directly from the DSS by the employee.
38. In some cases employers will require proof that an apparent female employee has reached, or is about to reach, the age of 60 and so entitled not to have the NI deductions made. Such proof may be provided in the form of an Age Exemption Certificate (form CA4180 or CF384). The DSS may issue such a certificate to a male-to-female transsexual where such a person enters into an undertaking to pay any NI contributions direct to the DSS.
39. A male-to-female transsexual is currently entitled to a State pension at the retirement age of 65 applied to men and not the age of 60 which is applicable to women. A full pension will be payable only if she has made contributions for 44 years as opposed to the 39 years required of women.
40. A person's sex for the purposes of pensionable age is determined according to biological sex at birth. This approach was approved by the Social Security Commissioner (a judicial officer, who specialises in social security law) in a number of cases:
In the case entitled R(P) 2/80, a male-to-female transsexual claimed entitlement to a pensionable age of 60. The Commissioner dismissed the claimant's appeal and stated at paragraph 9 of his decision:
“(a) In my view, the word “woman” in section 27 of the Act means a person who is biologically a woman. Sections 28 and 29 contain many references to a woman in terms which indicate that a person is denoted who is capable of forming a valid marriage with a husband. That can only be a person who is biologically a woman.
(b) I doubt whether the distinction between a person who is biologically, and one who is socially, female has ever been present in the minds of the legislators when enacting relevant statutes. However that may be, it is certain that Parliament has never conferred on any person the right or privilege of changing the basis of his national insurance rights from those appropriate to a man to those appropriate to a woman. In my judgment, such a fundamental right or privilege would have to be expressly granted. ...
(d) I fully appreciate the unfortunate predicament of the claimant, but the merits are not all on her side. She lived as a man from birth until 1975, and, during the part of that period when she was adult, her insurance rights were those appropriate to a man. These rights are in some respects more extensive than those appropriate to a woman. Accordingly, an element of unfairness to the general public might have to be tolerated so as to allow the payment of a pension to her at the pensionable age of a woman.”
41. The Government have instituted plans to eradicate the difference between men and women concerning age of entitlement to State pensions. Equalisation of the pension age is to begin in 2010 and it is anticipated that by 2020 the transition will be complete. As regards the issue of free bus passes in London, which also differentiated between men and women concerning age of eligibility (65 and 60 respectively), the Government have also announced plans to introduce a uniform age.
42. Under section 16(1) of the Theft Act 1968, it is a criminal offence liable to a sentence of imprisonment to dishonestly obtain a pecuniary advantage by deception. Pecuniary advantage includes, under section 16(2)(c), being given the opportunity to earn remuneration in employment. Should a post-operative transsexual be asked by a prospective employer to disclose all their previous names, but fail to make full disclosure before entering into a contract of employment, an offence might be committed. Furthermore, should the employer discover the lack of full disclosure, there might also be a risk of dismissal or an action by the employer for damages.
43. In its judgment of 30 April 1996, in the case of P. v. S. and Cornwall County Council, the European Court of Justice (ECJ) held that discrimination arising from gender reassignment constituted discrimination on grounds of sex and, accordingly, Article 5 § 1 of Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion and working conditions, precluded dismissal of a transsexual for a reason related to a gender reassignment. The ECJ held, rejecting the argument of the United Kingdom Government that the employer would also have dismissed P. if P. had previously been a woman and had undergone an operation to become a man, that
“... where a person is dismissed on the ground that he or she intends to undergo or has undergone gender reassignment, he or she is treated unfavourably by comparison with persons of the sex to which he or she was deemed to belong before undergoing gender reassignment.
To tolerate such discrimination would be tantamount, as regards such a person, to a failure to respect the dignity and freedom to which he or she is entitled and which the Court has a duty to safeguard.” (paragraphs 21–22)
44. The ruling of the ECJ was applied by the Employment Appeal Tribunal in a decision handed down on 27 June 1997 (Chessington World of Adventures Ltd v. Reed [1997] 1 Industrial Law Reports).
45. The Sexual Discrimination (Gender Re-assignment) Regulations 1999 were issued to comply with the ruling of the European Court of Justice in P. v. S. and Cornwall County Council (30 April 1996). This provides generally that transsexual persons should not be treated less favourably in employment because they are transsexual (whether pre- or post-operative).
46. Prior to 1994, for the purposes of the law of rape, a male-to-female transsexual would have been regarded as a male. Pursuant to section 142 of the Criminal Justice and Public Order Act 1994, for rape to be established there has to be “vaginal or anal intercourse with a person”. In a judgment of 28 October 1996, the Reading Crown Court found that penile penetration of a male to female transsexual's artificially constructed vagina amounted to rape: R. v. Matthews (unreported).
47. Prison rules require that male and female prisoners shall normally be detained separately and also that no prisoner shall be stripped and searched in the sight of a person of the opposite sex (Rules 12(1) and 41(3) of the Prison Rules 1999 respectively).
48. According to the Report of the Working Group on Transsexual People (Home Office April 2000, see further below, paragraphs 49-50), which conducted a review of law and practice, post-operative transsexuals where possible were allocated to an establishment for prisoners of their new gender. Detailed guidelines concerning the searching of transsexual prisoners were under consideration by which post-operative male to female transsexuals would be treated as women for the purposes of searches and searched only by women (see paragraphs 2.75-2.76).
49. On 14 April 1999, the Secretary of State for the Home Department announced the establishment of an Interdepartmental Working Group on Transsexual People with the following terms of reference:
“to consider, with particular reference to birth certificates, the need for appropriate legal measures to address the problems experienced by transsexuals, having due regard to scientific and societal developments, and measures undertaken in other countries to deal with this issue.”
50. The Working Group produced a report in April 2000 in which it examined the current position of transsexuals in the United Kingdom, with particular reference to their status under national law and the changes which might be made. It concluded:
“5.1. Transsexual people deal with their condition in different ways. Some live in the opposite sex without any treatment to acquire its physical attributes. Others take hormones so as to obtain some of the secondary characteristics of their chosen sex. A smaller number will undergo surgical procedures to make their bodies resemble, so far as possible, those of their acquired gender. The extent of treatment may be determined by individual choice, or by other factors such as health or financial resources. Many people revert to their biological sex after living for some time in the opposite sex, and some alternate between the two sexes throughout their lives. Consideration of the way forward must therefore take into account the needs of people at these different stages of change.
5.2. Measures have already been taken in a number of areas to assist transsexual people. For example, discrimination in employment against people on the basis of their transsexuality has been prohibited by the Sex Discrimination (Gender Reassignment) Regulations 1999 which, with few exceptions, provide that a transsexual person (whether pre- or post-operative) should not be treated less favourably because they are transsexual. The criminal justice system (i.e. the police, prisons, courts, etc.) try to accommodate the needs of transsexual people so far as is possible within operational constraints. A transsexual offender will normally be charged in their acquired gender, and a post-operative prisoner will usually be sent to a prison appropriate to their new status. Transsexual victims and witnesses will, in most circumstances, similarly be treated as belonging to their acquired gender.
5.3. In addition, official documents will often be issued in the acquired gender where the issue is identifying the individual rather than legal status. Thus, a transsexual person may obtain a passport, driving licence, medical card etc, in their new gender. We understand that many non-governmental bodies, such as examination authorities, will often re-issue examination certificates etc. (or otherwise provide evidence of qualifications) showing the required gender. We also found that at least one insurance company will issue policies to transsexual people in their acquired gender.
5.4. Notwithstanding such provisions, transsexual people are conscious of certain problems which do not have to be faced by the majority of the population. Submissions to the Group suggested that the principal areas where the transsexual community is seeking change are birth certificates, the right to marry and full recognition of their new gender for all legal purposes.
5.5. We have identified three options for the future;
– to leave the current situation unchanged;
– to issue birth certificates showing the new name and, possibly, the new gender;
– to grant full legal recognition of the new gender subject to certain criteria and procedures.
We suggest that before taking a view on these options the Government may wish to put the issues out to public consultation.”
51. The report was presented to Parliament in July 2000. Copies were placed in the libraries of both Houses of Parliament and sent to 280 recipients, including Working Group members, Government officials, Members of Parliament, individuals and organisations. It was publicised by a Home Office press notice and made available to members of the public through application to the Home Office in writing, E-mail, by telephone or the Home Office web site.
52. In the case of Bellinger v. Bellinger, EWCA Civ 1140 [2001], 3 FCR 1, the appellant who had been classified at birth as a man had undergone gender re-assignment surgery and in 1981 had gone through a form of marriage with a man who was aware of her background. She sought a declaration under the Family Law Act 1986 that the marriage was valid. The Court of Appeal held, by a majority, that the appellant's marriage was invalid as the parties were not respectively male and female, which terms were to be determined by biological criteria as set out in the decision of Corbett v. Corbett [1971]. Although it was noted that there was an increasing emphasis upon the impact of psychological factors on gender, there was no clear point at which such factors could be said to have effected a change of gender. A person correctly registered as male at birth, who had undergone gender reassignment surgery and was now living as a woman was biologically a male and therefore could not be defined as female for the purposes of marriage. It was for Parliament, not for the courts, to decide at what point it would be appropriate to recognise that a person who had been assigned to one sex at birth had changed gender for the purposes of marriage. Dame Elizabeth Butler-Sloss, President of the Family Division noted the warnings of the European Court of Human Rights about continued lack of response to the situation of transsexuals and observed that largely as a result of these criticisms an interdepartmental working group had been set up, which had in April 2000 issued a careful and comprehensive review of the medical condition, current practice in other countries and the state of English law in relevant aspects of the life of an individual:
“[95.] ... We inquired of Mr Moylan on behalf of the Attorney-General, what steps were being taken by any government department, to take forward any of the recommendations of the Report, or to prepare a consultation paper for public discussion.
[96.] To our dismay, we were informed that no steps whatsoever have been, or to the knowledge of Mr Moylan, were intended to be, taken to carry this matter forward. It appears, therefore, that the commissioning and completion of the report is the sum of the activity on the problems identified both by the Home Secretary in his terms of reference, and by the conclusions of the members of the working group. That would seem to us to be a failure to recognise the increasing concerns and changing attitudes across western Europe which have been set out so clearly and strongly in judgments of Members of the European Court at Strasbourg, and which in our view need to be addressed by the UK...
[109.] We would add however, with the strictures of the European Court of Human Rights well in mind, that there is no doubt that the profoundly unsatisfactory nature of the present position and the plight of transsexuals requires careful consideration. The recommendation of the interdepartmental working group for public consultation merits action by the government departments involved in these issues. The problems will not go away and may well come again before the European Court sooner rather than later.”
53. In his dissenting judgment, Lord Justice Thorpe considered that the foundations of the judgment in Corbett v. Corbett were no longer secure, taking the view that an approach restricted to biological criteria was no longer permissible in the light of scientific, medical and social change.
“[155.] To make the chromosomal factor conclusive, or even dominant, seems to me particularly questionable in the context of marriage. For it is an invisible feature of an individual, incapable of perception or registration other than by scientific test. It makes no contribution to the physiological or psychological self. Indeed in the context of the institution of marriage as it is today it seems to me right as a matter of principle and logic to give predominance to psychological factors just as it seem right to carry out the essential assessment of gender at or shortly before the time of marriage rather than at the time of birth...
[160.] The present claim lies most evidently in the territory of the family justice system. That system must always be sufficiently flexible to accommodate social change. It must also be humane and swift to recognise the right to human dignity and to freedom of choice in the individual's private life. One of the objectives of statute law reform in this field must be to ensure that the law reacts to and reflects social change. That must also be an objective of the judges in this field in the construction of existing statutory provisions. I am strongly of the opinion that there are not sufficiently compelling reasons, having regard to the interests of others affected or, more relevantly, the interests of society as a whole, to deny this appellant legal recognition of her marriage. I would have allowed this appeal.”
He also noted the lack of progress in domestic reforms:
“[151.] ...although the [interdepartmental] report has been made available by publication, Mr Moylan said that there has since been no public consultation. Furthermore when asked whether the Government had any present intention of initiating public consultation or any other process in preparation for a parliamentary Bill, Mr Moylan said that he had no instructions. Nor did he have any instructions as to whether the Government intended to legislate. My experience over the last 10 years suggests how hard it is for any department to gain a slot for family law reform by primary legislation. These circumstances reinforce my view that it is not only open to the court but it is its duty to construe s 11(c) either strictly, alternatively liberally as the evidence and the submissions in this case justify.”
54. In January 2002, the Government presented to Parliament the document “Civil Registration: Vital Change (Birth, Marriage and Death Registration in the 21st Century)” which set out plans for creating a central database of registration records which moves away from a traditional snapshot of life events towards the concept of a living record or single “through life” record:
“In time, updating the information in a birth record will mean that changes to a person's names, and potentially, sex will be able to be recorded.” (para. 5.1)
“5.5 Making changes
There is strong support for some relaxation to the rules that govern corrections to the records. Currently, once a record has been created, the only corrections that can be made are where it can be shown that an error was made at the time of registration and that this can be established. Correcting even the simplest spelling error requires formal procedures and the examination of appropriate evidence. The final records contains the full original and corrected information which is shown on subsequently issued certificates. The Government recognises that this can act as a disincentive. In future, changes (to reflect developments after the original record was made) will be made and formally recorded. Documents issued from the records will contain only the information as amended, though all the information will be retained. ...”
55. Liberty updated the written observations submitted in the case of Sheffield and Horsham concerning the legal recognition of transsexuals in comparative law (Sheffield and Horsham v. the United Kingdom judgment of 30 July 1998, Reports of Judgments and Decisions 1998-V, p. 2021, § 35). In its 1998 study, it had found that over the previous decade there had been an unmistakable trend in the member States of the Council of Europe towards giving full legal recognition to gender re-assignment. In particular, it noted that out of thirty seven countries analysed only four (including the United Kingdom) did not permit a change to be made to a person's birth certificate in one form or another to reflect the re-assigned sex of that person. In cases where gender re-assignment was legal and publicly funded, only the United Kingdom and Ireland did not give full legal recognition to the new gender identity.
56. In its follow up study submitted on 17 January 2002, Liberty noted that while there had not been a statistical increase in States giving full legal recognition of gender re-assignment within Europe, information from outside Europe showed developments in this direction. For example, there had been statutory recognition of gender re-assignment in Singapore, and a similar pattern of recognition in Canada, South Africa, Israel, Australia, New Zealand and all except two of the States of the United States of America. It cited in particular the cases of Attorney-General v. Otahuhu Family Court [1995] 1 NZLR 60 and Re Kevin [2001] FamCA 1074 where in New Zealand and Australia transsexual persons' assigned sex was recognised for the purposes of validating their marriages: In the latter case, Mr Justice Chisholm held:
“I see no basis in legal principle or policy why Australian law should follow the decision in Corbett. To do so would, I think, create indefensible inconsistencies between Australian marriage law and other Australian laws. It would take the law in a direction that is generally contrary to development in other countries. It would perpetuate a view that flies in the face of current medical understanding and practice. Most of all, it would impose indefensible suffering on people who have already had more than their share of difficulty, with no benefit to society...
...Because the words 'man' and 'woman' have their ordinary contemporary meaning, there is no formulaic solution to determining the sex of an individual for the purpose of the law of marriage. That is, it cannot be said as a matter of law that the question in a particular case will be determined by applying a single criterion, or limited list of criteria. Thus it is wrong to say that a person's sex depends on any single factor, such as chromosomes or genital sex; or some limited range of factors, such as the state of the person's gonads, chromosomes or genitals (whether at birth or at some other time). Similarly, it would be wrong in law to say that the question can be resolved by reference solely to the person's psychological state, or by identifying the person's 'brain sex'.
To determine a person's sex for the law of marriage, all relevant matters need to be considered. I do not seek to state a complete list or suggest that any factors necessarily have more importance than others. However the relevant matters include, in my opinion, the person's biological and physical characteristics at birth (including gonads, genitals and chromosomes); the person's life experiences, including the sex in which he or she was brought up and the person's attitude to it; the person's self-perception as a man or a woman; the extent to which the person has functioned in society as a man or a woman; any hormonal, surgical or other medical sex re-assignment treatments the person has undergone, and the consequences of such treatment; and the person's biological, psychological and physical characteristics at the time of the marriage...
For the purpose of ascertaining the validity of a marriage under Australian law the question whether a person is a man or a woman is to be determined as of the date of marriage...”
57. As regarded the eligibility of post-operative transsexuals to marry a person of sex opposite to their acquired gender, Liberty's survey indicated that 54% of Contracting States permitted such marriage (Annex 6 listed Austria, Belgium, Denmark, Estonia, Finland, France, Germany, Greece, Iceland, Italy, Latvia, Luxembourg, the Netherlands, Norway, Slovakia, Spain, Sweden, Switzerland, Turkey and Ukraine), while 14% did not (Ireland and the United Kingdom did not permit marriage, while no legislation existed in Moldova, Poland, Romania and Russia). The legal position in the remaining 32% was unclear.
58. Article 9 of the Charter of Fundamental Rights of the European Union, signed on 7 December 2000, provides:
“The right to marry and the right to found a family shall be guaranteed in accordance with the national laws governing the exercise of these rights.”
VIOLATED_ARTICLES: 12
8
NON_VIOLATED_ARTICLES: 13


ITEMID: 001-58140
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 1998
DOCNAME: CASE OF BOTTA v. ITALY
IMPORTANCE: 2
CONCLUSION: Art. 8 inapplicable;Art. 14 inapplicable
JUDGES: C. Russo;Feyyaz Gölcüklü;John Freeland;R. Pekkanen
TEXT: 8. Mr Botta, who was born in 1939 and lives in Trezzano sul Naviglio (Milan province), is physically disabled.
9. In August 1990 he went on holiday to the seaside resort of Lido degli Estensi, near to the town of Comacchio (Ferrara province) with a friend, who is also physically disabled. There he discovered that the bathing establishments were not equipped with the facilities needed to enable disabled people to gain access to the beach and the sea (particularly special access ramps and specially equipped lavatories and washrooms), in breach of Italian legislation, which required a clause obliging private beaches to facilitate the access of disabled people to be added to the relevant concession contracts and made provision for compliance to be enforced by the competent local authorities. According to Comacchio District Council, the compulsory clause was, however, only added to concession contracts signed after the adoption of the provisions concerned.
10. The applicant asserts that he was for a time able to gain access in his vehicle to certain public beaches without facilities, but was later prevented from doing so because a barrier had been erected across the entrance by order of the Ravenna harbour-master.
11. On 26 March 1991 the applicant sent a letter to the mayor of Comacchio asking him to take the necessary measures to remedy the shortcomings noted the previous year. No reply was received.
12. In August 1991 Mr Botta returned to Lido degli Estensi, where he found that none of the measures requested had been implemented, although they were mandatory. He was therefore obliged to ask the local coastal authority for permission to drive his vehicle onto a public beach without facilities. He also wrote to various local bodies, receiving the following replies: the president of the cooperative which ran the resort’s private beaches informed him that the concession contracts did not stipulate any obligation to install the facilities requested; the local coastal authority replied that it had to receive an official request before it could authorise the construction of special access ramps on the beaches; the mayor asserted that it was the private beaches’ responsibility to install the facilities in question, but nevertheless gave the applicant permission to drive onto a public beach in his vehicle.
In an undated memorandum the coastal authority gave him permission to drive onto a public beach without facilities in his vehicle for a limited period expiring on 31 August 1991.
13. On 9 August 1991 the applicant decided to lodge a complaint with the carabinieri against the Minister for Merchant Shipping, the Ravenna harbour-master and the mayor and deputy mayor of Comacchio. He alleged that, by failing to take any steps whatsoever to oblige the private beaches to install the facilities for disabled people prescribed by law on pain of cancellation of their licences, these authorities had committed the offence of omitting to perform an official duty (omissione d’atti d’ufficio), as defined in Article 328 of the Criminal Code.
On 20 December 1991 he asked the Ferrara public prosecutor’s office to inform him where matters stood in the case.
On 5 May 1992 the public prosecutor’s office submitted that the proceedings should be discontinued.
14. In an order of 12 May 1992 the judge responsible for preliminary investigations (giudice per le indagini preliminari) attached to the Ferrara District Court ordered the discontinuation of the proceedings on the ground that, having completed his inquiry, he had not found any evidence that the offence defined in Article 328 of the Criminal Code had been committed, given that the beaches’ concession contracts all contained a clause which obliged bathing establishments to make the beaches accessible to disabled people and to install at least one changing cubicle and one lavatory for their use.
On 1 September 1992 Mr Botta once again wrote to the Ferrara public prosecutor’s office seeking information about the state of the proceedings.
On 16 September 1992 he was informed by telephone that the proceedings relating to his complaint had been discontinued.
15. According to information supplied by the applicant and not contradicted by the Government, although some of the private beaches in Lido degli Estensi have subsequently installed changing cubicles and lavatories for disabled people, in July 1997 none of them had yet built a ramp designed to permit disabled people to gain access to the beach and the sea. On 29 August 1997 Comacchio District Council informed the registry of the Court of the adoption, on 11 August 1997, of the resort’s new improvements plan, under which compliance with the law on bathing establishments had to be achieved by 30 April 1999 at the latest.
16. Law no. 13 of 9 January 1989 contains provisions intended to guarantee disabled people effective access to private buildings and establishments and the removal of architectural obstructions (barriere architettoniche). section 1(2) laid down in particular that within three months of its entry into force the Minister of Public Works had to publish in the form of a decree the technical specifications to be used for the construction of private buildings and low-rent housing. The law also gives mayors certain duties, including an obligation to ensure that work to adapt facilities for use by disabled people is carried out at their request. In particular, section11 provides that, after receiving a request from a disabled person, a mayor must calculate what sum the District Council requires to do the work and inform the Region accordingly. The Region then ascertains its own needs and requests the necessary funds from the Ministry of Public Works. This money is paid out from the ad hoc fund set up pursuant to section 10 of the Law.
17. On 14 June 1989, pursuant to section 1(2) of the Law, the Ministry of Public Works adopted a decree (no. 236) requiring all future contracts awarding concessions to private beaches to include a clause obliging the beaches to install at least one changing cubicle and one lavatory specially designed for the use of disabled people and in addition to construct a special ramp enabling them to gain access to the beach and the sea.
On 23 January 1990 the Ministry of Merchant Shipping drew the attention of all harbour-masters to these provisions.
18. Moreover, section 23(3) of Law no. 104 of 5 February 1992 makes the grant of a concession in respect of public land, and its renewal, subject to implementation of the above measures by the establishments concerned. In addition, Law no. 118 of 30 March 1971 lays down equivalent provisions regarding the removal of architectural obstructions from public buildings and buildings open to the public.
19. Lastly section 41(8) of Law no. 104 of 1992 requires the competent administrative authorities to send the Prime Minister an annual report on the measures to assist disabled people for which they bear responsibility.
In 1995 no report for the purposes of section 41(8) of Law no. 104 of 1992 was submitted by the Ministry of Transport and Shipping, which had replaced the Ministry of Merchant Shipping in 1994, and the report submitted by the Ministry of Public Works merely stated that in 1994 none of the work for which it bore responsibility had been carried out because the relevant procedures had not yet been laid down.
20. Recommendation No. R (92) 6 of the Committee of Ministers, of 9 April 1992, on a coherent policy for people with disabilities, defines a handicap as
“a social disadvantage, for a given individual, resulting from an impairment or a disability, that limits or prevents the fulfilment of a role that is normal (depending on age, sex, and social and cultural factors) for that individual”.
The recommendation urges member States of the Council of Europe to “guarantee the right of people with disabilities to an independent life and full integration into society, and recognise society’s duty to make this possible” so as to ensure “equality of opportunity” for people with disabilities. The public authorities should aim, inter alia, to enable people with disabilities “to have as much mobility as possible, and access to buildings and means of transport” and “to play a full role in society and take part in economic, social, leisure, recreational and cultural activities”.
As regards leisure time and cultural activities in particular, Recommendation No. R (92) 6 states:
“All leisure, cultural and holiday activities should be made accessible to people with disabilities;
Structural, technical, physical and attitudinal obstacles which limit the enjoyment of the above activities should be removed. In particular, access to cinemas, theatres, museums, art galleries, tourist venues and holiday centres should be improved…
Cultural and leisure venues should be planned and equipped so that they are accessible and can be enjoyed by people with disabilities.”
The recommendation also states: “The exercise of basic legal rights of people with disabilities should be protected, including being free from discrimination.”
21. Recommendation 1185 (1992), adopted by the Parliamentary Assembly of the Council of Europe on 7 May 1992, on rehabilitation policies for the disabled, emphasises: “Society has a duty to adapt its standards to the specific needs of disabled people in order to ensure that they can lead independent lives.” In furtherance of that aim, it calls on the governments and agencies concerned “to strive for and encourage genuine active participation by disabled people … in the community and society” and, to that end, “to guarantee ease of access to buildings”.
22. The revised European Social Charter, adopted by the Committee of Ministers on 1–4 April 1996 and opened for signature on 3 May 1996, provides in its Article 15, entitled “Right of persons with disabilities to independence, social integration and participation in the life of the community”:
“With a view to ensuring to persons with disabilities, irrespective of age and the nature and origin of their disabilities, the effective exercise of the right to independence, social integration and participation in the life of the community, the Parties undertake, in particular:
…
3. to promote their full social integration and participation in the life of the community, in particular through measures, including technical aids, aiming to overcome barriers to communication and mobility and enabling access to transport, housing, cultural activities and leisure.”