ITEMID: 001-105147
LANGUAGEISOCODE: ENG
RESPONDENT: LVA
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF LEJA v. LATVIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 34;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Kristina Pardalos;Luis López Guerra
TEXT: 5. The applicant was born in 1946 and lives in Rīga.
6. On 5 May 1995 the applicant was arrested by the police and subsequently remanded in custody on suspicion of burglary and drunk driving. While in detention, on 8 May and 11 May 1995 the applicant was allegedly beaten, kicked and assaulted by policemen. The applicant’s subsequent requests for criminal proceedings to be instituted in respect of the alleged ill-treatment by the police eventually remained unsuccessful; by a final decision of 29 March 1996 the Saldus District Public Prosecutor’s Office refused to open a criminal investigation against the police officers.
7. On 26 October 1995 the Saldus District Court convicted the applicant of aggravated burglary and sentenced him to seven years’ imprisonment. On 17 April 1996 the Kurzeme Regional Court fully upheld the judgment of the first-instance court. On 30 May 1996 the Senate of the Supreme Court by a final decision dismissed the applicant’s appeal on points of law. The applicant’s repeated requests to the Prosecutor General for supervisory review of his conviction were dismissed on 30 June 1997 and on 12 November 1997 respectively.
8. On 4 September 1997 the Rīga City Kurzeme District Court examined the drink-driving charges against the applicant. The applicant was represented by defence counsel of his choice. The applicant was found guilty of that offence and sentenced to one year in prison. The court added to that sentence the sentence imposed on the applicant by the judgment of 26 October 1995 and imposed a final sentence of eight years’ imprisonment. On 15 January 1998 the Rīga Regional Court, acting as a court of appeal, reduced the applicant’s final sentence to seven years’ imprisonment. The applicant was represented at the appellate court by defence counsel. The applicant submitted an appeal on points of law. On 17 April 1998 the Senate of the Supreme Court refused leave to appeal, finding that the arguments invoked by the applicant did not constitute any valid ground for appeal in cassation according to the Code of Criminal Procedure.
9. On an unspecified date the applicant was transferred to Jelgavas prison to serve his sentence.
10. In June 1997, the applicant was subjected to disciplinary punishment in the form of detention in a punishment cell for fifteen days on the basis of a report that he had harassed another detainee. The applicant began a hunger strike to protest against the allegedly unjust penalty. On the tenth day of the hunger strike the disciplinary penalty was lifted.
11. On 8 October 1998 the applicant handed in to the prison administration a letter addressed to the Secretariat of the European Commission of Human Rights. It appears the application was not forwarded to the addressee but instead was transmitted to the Parliament, which, in turn, forwarded it to the Office of the Prosecutor General, which dismissed the complaints contained in the letter as unfounded. No letter of that date has been received by the Commission. On 9 February 1999 the applicant, having become aware that his application of 8 October 1998 had not been sent to the intended addressee, announced that he was going on hunger strike. The hunger strike gave rise to a disciplinary sanction of fifteen days’ detention in a disciplinary cell. The applicant further alleged that in response to his complaint a member of the prison administration had threatened him with a transfer to a prison “from which [he] will never come out”.
12. On 19 February 1999 the applicant was transferred from Jelgavas prison to Grīvas prison, located in Daugavpils. On 21 February 1999 the applicant was placed in a punishment cell to serve the remainder of the disciplinary penalty that had been imposed in Jelgavas prison.
13. After his release from the punishment cell, the applicant handed to the prison administration a complaint addressed to the Prosecutor’s Office for Places of Detention (Ieslodzījuma vietu prokuratūra). According to the applicant, the prison administration refused to accept his complaint for despatch. On an unspecified date the applicant started a hunger strike to protest against that refusal. As a result, on 10 March 1999 a new disciplinary punishment of fifteen days’ detention in a punishment cell was imposed on him.
14. On 15 March 1999 the applicant’s complaint was transferred to the Prosecutor’s Office for Places of Detention. On 30 March 1999 a prosecutor from that office dismissed the applicant’s complaint as unsubstantiated. The applicant appealed to a hierarchically superior prosecutor. However, the appeal was examined by the same prosecutor who had examined the original complaint. He dismissed that appeal on 19 April 1999, finding that the substance of the applicant’s complaint had already been examined once and that it had been dismissed for the reasons set out in the letter of 30 March 1999. According to the applicant, a further complaint he made to the Ministry of Justice was again dealt with by the same prosecutor, who again informed him that the matters complained of had already been examined.
15. On 26 June 2000 the deputy director of the Prison Administration (Ieslodzījuma vietu pārvalde) replied to a complaint, which apparently concerned the conditions of detention in Grīvas prison. The reply noted that a complex inspection had been carried out in that prison from 22 to 24 May 2000 and no violations of the Convention or the internal regulations mentioned in the applicant’s complaint had been found.
16. On 2 June 2000 the applicant handed a letter together with copies of documents to the prison administration in order to have it despatched to the Court. No such letter has been received at the Court. However, in a letter of 11 September 2000 a prosecutor of the Specialised Public Prosecutor’s Office (Specializētā vairāku nozaru prokuratūra) wrote to the applicant, informing him, inter alia, that his letter had been sent to Strasbourg on the same day that it had been handed to the prison administration.
17. On 3 September 2000 the applicant allegedly wrote to an unspecified public prosecutor’s office, complaining about his ill-treatment in Grīvas prison, the conditions of detention therein and the allegedly unlawful character of the disciplinary penalties imposed on him. The applicant asked for criminal proceedings to be instituted in that regard. It appears that he did not receive any reply.
18. On 5 September 2000 the applicant started a hunger strike in order to demonstrate to the authorities that the disciplinary penalties imposed on him were unlawful, that his rights had been infringed and to protest that his application of 8 October 1998 had not been sent to Strasbourg. As a result, he was again penalised with fifteen days’ solitary confinement in a punishment cell. According to the applicant, a prison staff member, C., prepared a special cell for this penalty, in order to intentionally increase the severity of the punishment. The applicant alleges that a fan installed in the wall of the cell was purposefully switched on, causing a flow of cold air from the outside. A window was kept open at all times. As a result, the air temperature inside the cell was approximately 0oC. Before his removal to the punishment cell the applicant was made to change his clothes to thinner ones, which did not provide sufficient warmth. The equipment of the cell consisted of a single metal bed with no mattress, blanket or bedding.
19. During his solitary confinement the applicant was subjected to full body searches on several occasions. In his submission, during these searches he was taken out of the punishment cell into a corridor and forced to strip naked. According to the applicant, the only real reason for conducting the searches had been to humiliate him.
20. On 19 September 2000, which was the seventh day of his confinement, the applicant was transferred to the medical department of the prison. On 21 September he discontinued the hunger strike for health reasons. On 22 September 2000 the applicant received a penalty of fifteen days’ solitary confinement for “failure to obey the rules of a hunger strike”.
21. After his release from the punishment cell, the applicant allegedly requested two staff members of the prison to forward his complaints concerning his alleged ill-treatment and torture. However, the applicant assumes that his complaints were never sent to the intended addressees, since he did not receive any replies.
22. On 11 December 2000 the applicant requested a member of the prison administration to despatch a complaint concerning his ill-treatment. On 22 January 2001 a prosecutor of the Specialised Public Prosecutor’s Office replied to the applicant’s complaint and noted, inter alia, that the applicant’s complaint “that [he was] being tortured by representatives of prison administration could not be verified”, and the prosecutor thus considered that the applicant’s grievances consisted merely of “unsubstantiated statements”. The prosecutor further wrote to the applicant that “if you choose to damage your own health by starvation, you are the only one to blame”. Finally, it was noted that an appeal could be lodged against the response to a hierarchically superior prosecutor of the same prosecutor’s office. It appears that the applicant did not formulate such an appeal.
23. On 5 January 2001 the applicant was transferred from Grīvas prison to Daugavpils prison.
24. On 31 January 2001 he submitted a complaint to the Prison Administration. On 5 March 2001 the Deputy Director of the Prison Administration replied to the applicant’s complaint. The reply summarised the applicant’s complaints as being about
“serious conflicts [he was having] with the administrations of Grīvas and Jelgavas prisons[,] ... Grīvas prison director’s and staff’s unfair and prejudiced attitude towards [the applicant], [i]ncessant pressure put on [him, and] about corruption in the Grīvas prison administration, and about existing financial violations”
and other issues. The Prison Administration’s reply stated, inter alia, that on 24 January 2001 an inspection had been carried out in Grīvas prison and no breaches of prison rules on the part of the prison administration had been found.
25. The applicant alleges that in January and February 2001 he applied to the Office of the Prosecutor General and to the President of the Supreme Court, complaining, inter alia, about ill-treatment by the Grīvas prison authorities. The complaints were subsequently transferred to the Specialised Public Prosecutor’s Office. On 14 March 2001 a prosecutor of the Specialised Public Prosecutor’s Office dismissed the applicant’s complaints addressed to the Prosecutor General’s Office and to the President of the Supreme Court as unsubstantiated.
26. On 18 and 19 April 2001 the Prison Administration carried out a regularly scheduled inspection in Grīvas prison, in the course of which certain deficiencies were discovered. Specifically it was found that problems existed with regard to the placement in cells of active tuberculosis carriers, the execution of sentences of juvenile criminals, and the adequacy of procedures for changing imprisonment regimes. No other problems were noted.
27. In January 2001, upon arrival at Daugavpils prison, the applicant’s personal belongings such as washing powder, shampoo, newspapers, shoe polish, a hairbrush and certain items of stationery were seized by the prison administration.
28. In April 2001 the applicant handed to the prison administration a letter addressed to the European Court of Human Rights. The letter and the attached documents had been placed in a hand-made envelope, since the applicant lacked sufficient means to buy standard size envelopes. However, on 27 April 2001 the letter was returned to the applicant and he was informed that the postal service had refused to despatch the letter because of the non-standard envelope size.
29. On 3 March 2002 the applicant was transferred to Valmieras prison and on 3 May 2002 he was released from prison after serving his sentence.
30. On 19 September 2000 the administrative commission of Grīvas prison decided to transfer the applicant from the “higher” or most lenient type of prison regime to the stricter “medium” regime, due to his persistent breaches of the internal rules of the prison. Neither the applicant nor his defence counsel were present at the meeting of the administrative commission. The Government indicated that immediately after the meeting the members of the administrative commission, with a public prosecutor, visited the applicant in the punishment cell where he was being held at that time. The applicant refused to talk to them and refused to sign the decision of the commission. According to the applicant, he was unable to talk to the members of the commission because he “was lying on the floor with a bleeding face”. The Government submitted that the applicant’ right to appeal against that decision had been explained to him. The applicant alleged that he was unable to lodge an appeal, since in the punishment cell the use of writing materials was forbidden by order of the director of Grīvas prison. In a report of 11 January 2001 a prosecutor of the Specialised Public Prosecutor’s Office noted that the applicant had appealed against the administrative commission’s decision. No documents in that regard were produced before the Court by either of the parties.
31. On 12 December 2000 the administrative commission decided to transfer the applicant from the “medium” regime to the “lower” or the strictest type of regime on the basis of persistent breaches of the internal rules of the prison. The applicant alleged that the director of the prison had rejected his request to ensure legal representation. The applicant himself participated in the meeting of the commission.
32. On 8 February 2001 the Daugavpils Court examined the applicant’s appeal against the decision of 12 December 2000 and dismissed it by a final decision. The applicant participated in the hearing. According to the applicant, in his appeal he brought his complaints of ill-treatment to the attention of the court but received no reply. The decision of the court noted that the applicant had argued that the disciplinary infractions that he was alleged to have committed had been insignificant. In response, the court briefly indicated that the applicant had systematically violated the internal rules of the prison and therefore the decision of the administrative commission was appropriate.
33. Article 95 of the Constitution (Satversme) prohibits torture, as well as any cruel, inhuman or degrading treatment or punishment.
34. The relevant parts of the Law on the Prosecutor’s Office (Prokuratūras likums) as applicable at the material time read as follows:
“(1) In his or her activities a prosecutor shall be independent of the influence of any other institution or official exercising State authority or administrative power, and shall be bound only by the law.
(2) The Parliament, the Cabinet of Ministers, State and local government institutions, State and local government civil servants, all types of enterprises and organisations, as well as all persons are prohibited from interfering in the work of prosecutors during the investigation of cases or during the performance of other functions of prosecutors.
(3) Prosecutors’ actions may be appealed against in the cases and in accordance with the procedures specified by this law and procedural laws. Complaints regarding questions which fall within the exclusive competence of prosecutors shall be submitted to a chief prosecutor of a hierarchically superior prosecutor’s office, but regarding the actions of a prosecutor of the Office of the Prosecutor General to the Prosecutor General. The decisions taken by the aforementioned officials shall be final.
(4) A prosecutor of a superior rank may take over any case file, but may not compel a prosecutor to carry out actions against his or her belief.
...
(7) Attempts to unlawfully exert influence on a prosecutor or to interfere with the work of a prosecutor’s office shall be prosecuted in accordance with law.”
“(1) Lawful orders of a prosecutor shall bind all persons in the territory of the Republic of Latvia.
(2) Persons shall be prosecuted in accordance with law for any failure to comply with the lawful orders of a prosecutor.”
“(1) In accordance with the procedures prescribed by law, prosecutors shall supervise the execution of court-imposed sentences of deprivation of liberty and supervise the places where persons arrested, detained or under guard are held, and shall take part in court hearings relating to changes in the specified length of sentences or the conditions of sentences.
...
(3) A prosecutor’s protest with regard to an unlawful penalty imposed on a person held in a place of deprivation of liberty shall suspend the execution of the penalty until the protest has been dealt with.”
“(1) Having received information concerning a breach of law, a prosecutor shall carry out an examination in accordance with the procedures prescribed by law if:
1) the information concerns a crime;
2) the rights and lawful interests of ...detainees ... have been violated.
(2) A prosecutor has the duty to take measures required for the protection of rights and lawful interests of persons and the State, if:
1) the Prosecutor General or a chief prosecutor recognises the necessity for such examination; ...
2) such a duty is provided for by other laws. ...
(3) A prosecutor shall also carry out an examination if a submission from a person regarding a violation of his or her rights or lawful interests is received and if this submission has already been reviewed by a competent state institution and it has refused to rectify the violation of law referred to in the submission or it has given no reply within the term specified by law. ...”
“(1) When examining an application in accordance with the law, a prosecutor has the right:
1) to request and to receive regulatory enactments, documents and other information from administrative authorities ..., as well as to enter the premises of such authorities without hindrance;
2) to order heads and other officials of ... institutions and organisations to carry out examinations, audits and expert-examinations and to submit opinions, as well as to provide the assistance of specialists in the examinations carried out by the prosecutor;
3) to summon a person and to receive from him/her an explanation on the breach of law...
(2) When taking a decision on a breach of law, the prosecutor, depending on the nature of the breach, has the duty:
...
3) to bring an action to the court;
4) to initiate a criminal investigation; or
5) to initiate [proceedings on] administrative or disciplinary liability.”
“... (3) If the requirements stated in an application [of a prosecutor to an authority] are not complied with or no reply to it is provided, the prosecutor is entitled to submit to a court or to any other competent institution a request to subject [the responsible] person to liability prescribed by law.”
35. Section 130 of the Criminal Law (Krimināllikums) reads as follows:
“(1) For a person who intentionally inflicts [upon another person] bodily injuries which have not caused damage to health or the general ongoing loss of ability to work (minor bodily injuries), as well as who intentionally [subjects another person] to beating which has not caused the consequences mentioned, the applicable sentence shall be custodial arrest, or community service, or a fine not exceeding ten times the minimum monthly wage.
(2) For a person who intentionally inflicts [upon another person] minor bodily injuries which cause temporary damage to health or insignificant general ongoing loss of ability to work, the applicable sentence shall be deprivation of liberty for a term not exceeding one year, or custodial arrest, or community service, or a fine not exceeding twenty times the minimum monthly wage.
(3) For a person who [subjects another person to] systematic beating having the nature of torture, or any other kind of torture, provided these acts have not [caused injuries of medium severity or very severe injuries], the applicable sentence shall be deprivation of liberty for a term not exceeding three years, or custodial arrest, or community service, or a fine not exceeding sixty times the minimum monthly wage.”
36. According to section 111(2) of the Code of Criminal Procedure in force at the material time, the aforementioned offence belonged to the category of private prosecution cases which had to be brought by the plaintiff directly before the court with jurisdiction. The statutory limitation period for this offence expired after six months (section 56(1) of the Criminal Law). Section 111(4) provided that normally pre-trial investigation was not conducted in private prosecution cases, except if a court, a judge or a prosecutor decided to conduct one “in order to protect the interests of the state or of society or rights of certain persons”.
37. Section 71 of the Sentence Enforcement Code (Sodu izpildes kodekss) at the relevant time provided that prison inmates may appeal against disciplinary penalties to hierarchically superior staff members.
38. The Rules of the Prison Administration (Ieslodzījuma vietu pārvaldes nolikums) that were in force at the relevant time provided that the head of the Prison Administration had the obligation to accept and reply to complaints, enquiries and suggestions and had the right to quash unlawful orders or decisions of any staff member of the Prison Administration or prisons.
39. At the material time, the Code of Civil Procedure provided that civil courts were competent to deal with, among others, cases arising from actions or decisions of state or municipal agents where those had impinged on private individuals’ rights (section 228). Chapter 24.A of that Code set out the rules and procedures to be followed in such cases, from which it followed that civil courts could deal with disputes for which the law did not provide for another settlement mechanism.
40. The relevant findings of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (hereinafter “the CPT”) read as follows:
“140. One of the most effective means of preventing ill-treatment by prison officers lies in the diligent examination of complaints of ill-treatment and the imposition of suitable penalties. Prisoners should have avenues of complaint open to them both within and outside the prison system, including the possibility of confidential access to an appropriate authority.
In all prisons visited, prisoners could, in principle, submit a complaint to the establishment’s Director. In addition, complaints could be addressed to the Regional Prosecutor and the National Human Rights Office.
However, the CPT is concerned by the manner in which prisoners’ complaints were processed in practice. Many prisoners interviewed in the establishments visited indicated that they did not have any trust in the current complaints system, since they were obliged to hand their complaint - even those addressed to judicial authorities – in an unsealed envelope to a prison officer. Not surprisingly, only a few complaints were recorded in the establishments visited. Means must be found of enabling complaints to be submitted to the Regional Prosecutor and the National Human Rights Office in a truly confidential manner.”
“77. As in 2002, the confidentiality of external complaints was not always guaranteed (i.e. prisoners were obliged to hand complaints in an unsealed envelope to the prison administration or to give an oral explanation to members of the Security Department on the reasons for lodging a complaint). The CPT reiterates its recommendation that steps be taken to enable prisoners to submit complaints to the Regional Prosecutor and the National Human Rights Office in a truly confidential manner.”
VIOLATED_ARTICLES: 34


ITEMID: 001-23005
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: VERLAGSGRUPPE NEWS GMBH v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Georg Ress
TEXT: The applicant is the Verlagsgruppe News Gesellschaft mbH, a limited liability company with its seat in Tulln (Austria). It is represented before the Court by Mr G. Zanger, a lawyer practising in Vienna.
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant is the owner and publisher of the weekly magazine “News”.
In its issue no 45/99 the magazine published articles reporting on a planned demonstration against racism and the FPÖ’s policy, and articles about Mr Haider, the Carinthia Regional Governor and, at that time, Chairman of the Austrian Liberal Party (FPÖ), commenting, inter alia, on his role in the ongoing process of the creation of the new Federal Government (Bundesregierung) after the election of the National Assembly (Nationalrat) in October 1999. On the front page it placed a photomontage picturing Mr Haider symbolising the devil: horns attached to a bald head on a blazing red background. This picture was accompanied by the following text sequences:
“Arch-enemy Haider, how he plans to come into power” and
“The Demonstration: Who opposes him” and
“How he further tries to set fire”
On 12 November 1999 Mr Haider brought compensation proceedings against the applicant company claiming compensation under section 6 of the Media Act (Mediengesetz) for defamation. He argued that the photomontage, picturing him as devil, constituted offences under the Criminal Code. Further he requested supplementary measures under the Media Act, such as the publication of a notice that proceedings under that Act had been opened and the publication of the judgment.
On 19 November 1999 the St. Pölten Regional Court (Landesgericht), without having held a hearing, ordered the applicant company to publish the following notice:
“Notice pursuant to sections 8a (5) and 37 (1) Media Act:
In its issue 45 from 11 November 1999 the periodical ‘News’ published on the front page a portrayal of the claimant as devil. Alongside the following headlines were published: ‘Arch-enemy Haider, how he plans to come into power’; ‘The Demonstration: Who opposes him.’; and ‘How he further tries to set fire.’
The claimant Dr. Jörg Haider filed an application under the Media Act because of this front page against the defendant, the Verlagsgruppe News GmbH.
The proceedings are pending.”
On 7 December 1999 the applicant company filed an appeal. It stressed that the photomontage on the front page had to be considered in connection with the articles in the magazine, in which it had reported on a planned demonstration and its supporters against the FPÖ’s and Mr Haider’s policy, against racism in general and against Mr Haider’s political position. Further it submitted that the photomontage was easily recognisable as a caricature and that the fundamental message of the publication had been that Mr Haider was the “political arch-enemy” for many Austrian people. The impugned publication had therefore been a value judgment. Finally, the applicant company referred to the Court’s Oberschlick v. Austria judgment (no.1) of 23 May 1991 (Series A no. 204, p. 26, § 59), in which the Court found that the limits of acceptable criticism are wider with regard to a politician acting in his public capacity than in relation to a private individual.
On 22 December 1999 the Vienna Court of Appeal dismissed the applicant company’s appeal.
On 11 July 2000 the St. Pölten Regional Court, after having held a hearing, sentenced the applicant company to a fine of ATS 100,000 and ordered it to publish this judgment in its magazine. It found that the average reader had related the photomontage to the negative characteristics of the devil. The incriminated publication had constituted a debasing denunciation as Mr Haider had been equated with the evil. However, no factual basis could have been deduced from the accompanying headlines.
On 18 December 2000 the Vienna Court of Appeal (Oberlandesgericht), after having held a hearing, partly allowed the applicant’s appeal on points of law and fact (Berufung wegen Nichtigkeit und Schuld) and the appeal against sentence (Berufung wegen Strafe) and reduced the fine to ATS 80,000. It found that the incriminated publication did not constitute an equalisation with the character of the devil. However, it was placed as eye-catcher on the front page and constituted a striking exposure of Mr Haider, in which he was described as debased and publicly ridiculed. Further it found that the photomontage could not be regarded as a caricature. Although the limits of acceptable criticism were wider with regard to a politician acting in his public capacity than in relation to a private individual, defamation was prohibited. Balancing Mr Haider’s personal interest against the rights of the applicant company under Article 10 of the Convention, it found that a politician too was entitled to have his reputation protected, particularly if the debasing picture, taking into account its luridness, had served primarily the company’s business interests (the issue 45/99 of the magazine “News” reached the highest sales volume ever). In this case it found that the personal interest in protecting a person’s reputation outweighed the right secured by Article 10 of the Convention as the emphasis of the publication was put on the personal insulting statement. Therefore, the court concluded that the objective elements of the offence of defamation within the meaning of Section 115 of the Criminal Code had been met. Referring to the Oberschlick v. Austria (no. 1) judgment of 23 May 1991 (Series A no. 204), it found that the photomontage on the front page had to be considered separately from the reports in the magazine as, in any case, its impact had overlaid all potential factual references. The accompanying headlines had not provided a factual basis for the incriminated photomontage and freedom of expression could not justify the personal insulting statement committed by the publication.
According to the Media Act, compensation claims may be made either in criminal proceedings against the publisher or, failing such criminal proceedings, in separate proceedings.
If a publication in the media, viewed objectively, constitutes, inter alia, an insult under Section 115 of the Criminal Code, the insulted person may claim compensation for non-pecuniary damages from the media owner, pursuant to section 6 § 1 of the Media Act.
Section 115 of the Criminal Code, in so far as relevant, reads as follows:
“1. Anyone who, in public or in the presence of several others, insults, mocks, mistreats or threatens to mistreat a third person, shall be liable to imprisonment not exceeding three months or a fine ... unless he is liable to a more severe penalty under another provision. ... ”
Upon request of the insulted person under section 8a § 5 of the Media Act, the competent court has to order the publication of a notice to the effect, that compensation proceedings under the Media Act are pending, if it is to be presumed that the requirements for compensation will be met. If the defendant does not comply with the order to publish the notice, the plaintiff may request the court to impose a fine which cannot exceed ATS 10,000 per published edition of the defendant’s magazine (section 20 § 1 of the Media Act).
In the case of an insulting statement, the amount of damages payable cannot exceed ATS 200,000 (section 6 § 1 of the Media Act). When fixing the amount to be awarded, the competent court has to give particular consideration to the effect of the insulting publication and the economic situation of the media company.


ITEMID: 001-61276
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF KEPENEROV v. BULGARIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 5-1;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 9. The applicant was born in 1939 and lives in Sofia.
10. On 8 February 1995 the District Prosecutor’s Office in Sofia opened an inquiry following a complaint by the director of the local telephone service that the applicant had been harassing him and other employees by making offensive statements and allegations that his telephone had been tapped.
11. On 5 June 1995 one of the applicant’s children complained about her father’s aggressive behaviour and requested that he be examined by a psychiatrist. She later made a further complaint in writing, stating that the applicant had beaten her. She enclosed a medical certificate as proof of this.
12. Between September and November 1995 the local police department collected written statements from employees of the telephone service, the applicant’s daughter, his wife and neighbours.
13. The District Prosecutor’s Office in Sofia requested the applicant to undergo a psychiatric examination on 23 January 1996. The applicant did not comply with the request.
14. On 13 February 1996 a prosecutor ordered the applicant’s forced psychiatric examination and instructed the police to arrest him and bring him to the local mental health centre. These instructions did not refer to the length of time the applicant’s confinement was to last.
15. The applicant was not informed of the above decisions.
16. On 22 February 1996 the applicant was arrested and brought to the Sofia mental health centre. On the same day, after a short examination, he was transferred to a psychiatric hospital.
17. It transpires from a letter written in 2001 by the director of the hospital concerning the complaints which the applicant lodged with the Court that the hospital administration believed that the prosecutor had ordered that the applicant was to be confined for thirty days.
18. On 26 February 1996 the applicant submitted a written complaint to the hospital administration requesting his release. He also complained orally that his detention was unlawful and, on at least one occasion, asked for a lawyer.
19. On 22 March 1996 the applicant was discharged. He attended voluntarily an examination held on 28 March 1996 but did not turn up when invited for another examination on 5 April 1996.
20. On 2 May 1996 the psychiatric hospital forwarded to the District Prosecutor’s Office the doctors’ opinion on the applicant’s mental condition. The doctors noted in their opinion that the applicant was suffering from certain disorders, but concluded that the need to subject the applicant to compulsory psychiatric treatment should be decided by the competent court following a fresh assessment of his mental condition.
21. On 5 June 1996 the prosecution authorities submitted to the Sofia District Court a request for the applicant’s compulsory psychiatric treatment under section 36 of the Public Health Act. On 8 April 1997 the proceedings were terminated.
22. On an unspecified date in 1996 the applicant complained to the Sofia City Police Department about his arrest and detention as well as about the behaviour of the police officers involved in these measures.
23. On 1 September 1997 the applicant filed complaints with the Chief Public Prosecutor’s Office and with the Minister of the Interior in which he described the events surrounding his arrest and subsequent detention in the psychiatric clinic. The applicant maintained that the authorities had acted unlawfully. By letter of 16 September 1997 the Third District Police Department in Sofia, to which the Ministry of the Interior had transmitted the applicant’s complaints, replied that the police officers involved had acted pursuant to the order of a prosecutor order and, therefore, lawfully. In reply to the applicant’s request for further information, the same police department, in a letter of 20 October 1997, stated that the police had acted lawfully in accordance with the order of a prosecutor.
24. According to section 36 §§ 3-6 read in conjunction with sections 59 § 2, 61 and 62 § 1 of the Public Health Act, a mentally ill person can be committed to compulsory psychiatric treatment by a decision of a district court.
25. The relevant judicial proceedings are instituted by a district prosecutor who is obliged to undertake a prior inquiry, including the ordering of a psychiatric examination, in order to assess the need for instituting proceedings. The prosecutor would therefore normally invite the person concerned to undergo a psychiatric examination in the framework of his inquiry.
26. The Public Health Act, as in force at the relevant time, did not contain any provision authorising a prosecutor to order that a person be brought by force to a hospital and be detained there for the purposes of a psychiatric examination.
27. In February 1997 section 61 §§ 2-4 of the Public Health Act was amended. According to the new provisions a prosecutor, in the framework of an inquiry, can order a person’s confinement in a psychiatric hospital for the purposes of his medical examination if that person has refused to submit himself voluntarily to such an examination. The prosecutor is not obliged to seek a medical opinion before making a confinement order.
28. The relevant law – even after the 1997 amendment and at the time of the adoption of this judgment – does not provide for an appeal to a court in cases of persons who are detained for an examination in the framework of a district prosecutor’s inquiry.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1


ITEMID: 001-61763
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF TOTEVA v. BULGARIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 3;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 9. The applicant was born in 1928 and lived in Sevlievo.
10. On 5 April 1995, at 8 a.m., the applicant, at that time 67 years old, was taken by three police officers, lieutenant R., chief-sergeant D., and a driver, to the District Police Department in the town of Sevlievo. The arrest took place in connection with a complaint filed the previous evening by one of the applicant’s neighbours, Mrs T., in which she had alleged that the applicant had beaten her with a stick.
11. Once on the premises of the District Police Department, the applicant was placed in a detention room, where she spent some time. Then she was brought into the office of lieutenant R. Present in the room were also Mrs T., Mr T. (her husband) and chief-sergeant D. The applicant was confronted with Mrs T. in order to establish whether the facts alleged in the complaint were true. The applicant denied the allegation and an argument erupted between her and Mrs T. Lieutenant R. left the room to take some documents from another office. As the argument between the applicant and Mrs T. continued, chief-sergeant D. led the applicant out of lieutenant R.’s office, into the corridor.
12. According to testimony given later by chief-sergeant D. and another police officer, sergeant U., after being led out of the office and into the corridor, the applicant, who was irritated, called chief-sergeant D. a “brat”, a “piss-pants” and a “sniveler”, and slapped him on the face. He then grabbed her hands and pushed her back but she kicked him in the ankle. Then sergeant U. intervened to help chief-sergeant D., and the two forced the applicant into a detention room, from where she continued screaming insults at them. Then both officers left the detention room. Both officers denied having hit the applicant or having pushed her to the floor.
13. The applicant’s version of the facts significantly differed. She denied having insulted or hit chief-sergeant D. She submitted that after taking her out of lieutenant R.’s office, chief-sergeant D. and sergeant U. had guided her to a detention room, where they had started beating her in order to extract a confession. The applicant stated that sergeant U. had been holding her while chief-sergeant D. had been hitting her face and temple and kicking her torso. Her nose had started bleeding and sergeant U. had taken her to the toilet to wash the blood. He had also made the applicant wash the basin and had brought her back to the detention room, where the two had continued beating her. Chief-sergeant D. had kicked her and, while falling on the floor, the applicant had bumped her head against the edge of a table. She had lost consciousness for some time. After that she had spent an unspecified amount of time lying in the detention room.
14. In his testimony given at the applicant’s trial lieutenant R. relayed that around 12 noon he had come to the detention room and had found the applicant squatting on the floor. The applicant had told him that she “[had been] killed, [that] her waist [had been] broken ... that she [had been] beaten”. He had not seen any blood or visible traces of injury on the applicant but she had told him that her nose and mouth had been injured. The lieutenant had helped her sit on a chair. He had presented her a procèsverbal establishing the fact that the previous evening the applicant had beaten Mrs T. and had asked her to sign it. The applicant had written “I am not guilty” and had signed. Lieutenant R. had led the applicant to the hallway of the police station and had left her there. She had told him that she could not walk.
15. After being left by lieutenant R. at the hallway, the applicant asked several police officers to call an ambulance or a taxi to take her to hospital, but apparently no one responded to her request. Then the applicant crawled out of the police station on her hands and knees. She was seen crawling by a boy, G.A., whom she asked to help her reach the nearest payphone by letting her lean against his bicycle. Shortly thereafter a driver, Mr Y., came across them with his car and took the applicant to the surgical ward of the local hospital. Mr Y. later testified that he had not seen visible traces of injury on the applicant but that she had been crying and had said that she had been beaten at the police.
16. The on-duty surgeon, Dr S., arrived at the hospital at around 4 p.m. and examined the applicant. For the investigation Dr S. stated that at the time of the examination he had not observed visible traces of injury, but at the applicant’s trial he testified that she had come to him with traumas on her head and back. The one on the head had been a dull trauma in the left temporal zone, without skin rupturing. The one on the back had been also a dull trauma under the right scapula, with a visible sub-cutaneous haematoma. In his view, the injuries in question could have been caused by a blow with or against a blunt object.
17. Dr S. directed the applicant to a consultation with a neurologist from the local emergency ward. The neurologist examined her at 6.15 p.m. and noted that the applicant had “[c]ontusio capitis. ... [c]ommotio cerebri”. His opinion was that she had to be hospitalised and treated.
18. In the evening the applicant went back to her house and spent the night there.
19. The following morning, on 6 April 1995, the applicant was admitted to the surgical ward of the District Hospital in Sevlievo. The doctors found:
“Head – painfulness upon palpation in the left temporal zone; behind and above the left ear – sub-cutaneous haematoma ... Thorax – sub-cutaneous blue-yellowish haematoma, measuring 5 to 4 centimetres in the right thoracic half, in the lower end of the right scapula.”
20. The applicant stayed in hospital until 14 April 1995. She was treated with analgesics and neuroleptics. The doctors also prescribed rest and calm.
On 8 May 1995 the applicant went to the hospital for an examination. The report drawn by the examining doctor stated that at that time the applicant was complaining of “strong vertigo, headache, nausea and vomiting”. The diagnosis again was “[c]ontusio capitis ... [c]ommotio cerebri.”
21. On 16 June 1995 the applicant was admitted to the neurological ward of the District Hospital in Sevlievo. It appears that at that time the applicant was treated mainly for high blood pressure. She remained in hospital until 17 July 1995.
22. On the day of incident, 5 April 1995, chief-sergeant D., the police officer who had allegedly beaten the applicant, submitted a report to the head of the District Police Department in Sevlievo. He alleged that the applicant had hit him and had used abusive language against him and asserted that he had put her in the detention room to prevent her from carrying on.
23. On the basis of this report the District Police Department initiated an inquiry and charged lieutenant R., one of the officers who had arrested the applicant, to conduct it. The lieutenant finished the inquiry in one day and on 7 April 1995 submitted a report concluding that the facts warranted the opening of a criminal investigation against the applicant.
24. On 13 April 1995 an investigator from the District Investigation Service in Sevlievo opened a criminal investigation against the applicant for having caused a light bodily injury to an official and for having insulted him during the performance of his duties, offences under Articles 131 § 1 (1) and 148 § 1 (3) of the Criminal Code (“CC”). The injury in question was the result of the applicant having allegedly slapped chief-sergeant D. on the face and kicked him in the ankle. No medical evidence was presented. On the same day the investigator heard chief-sergeant D., lieutenant R., sergeant U., Mr T. and Mrs T. A week later, on 20 April 1995, the investigator sent the material to the Sevlievo District Prosecutor’s Office with a recommendation that the applicant be indicted. The case was assigned to prosecutor G. who filed a bill of indictment with the Sevlievo District Court.
25. When the applicant’s trial opened her counsel requested a medical expert report in order to determine whether the injuries sustained by the applicant could have been the result of beating by the police officer accusing her of violence against him. The District Court did not appoint an expert but instead remitted the case to the prosecution with instructions to carry out the steps requested by the applicant’s defence. However, no report was made, as the prosecutor in charge of the case held that the mechanism of the injuries had already been ascertained by the doctors who had examined the applicant upon her admitting to hospital.
26. When the trial resumed on 4 and 17 April 1996, counsel for the applicant renewed her request for an expert report but it was denied by the court, which held that the facts of the case had already been established on the basis of the available evidence.
27. In the proceedings before the District Court the applicant testified that she had been beaten by chief-sergeant D.
28. In her closing argument at trial counsel for the applicant pointed out that the applicant had been beaten, had sustained injuries, had been treated for them in hospital and that a complaint had been filed with the District Prosecutor’s Office.
29. On 17 April 1996 the District Court found the applicant guilty as charged and sentenced her to six months’ imprisonment, suspended for three years.
On the basis of the testimony given by chief-sergeant D. and sergeant U. (the court held that Mrs T.’s and Mr T.’s testimony was not credible because their relations with the applicant had been strained) the court found that the officers had led the applicant out of lieutenant R.’s office and into the corridor. There, some verbal exchange had taken place between the applicant and chief-sergeant D., while sergeant U. had stepped aside. The applicant had then slapped chief-sergeant D. on the face, had tried to kick him and had called him a “brat” and a “sniveler”. The court noted that the applicant presented a completely different version of the facts, namely that it was her who had been subjected to violence. However, it went on to hold that Dr S., the surgeon who examined the applicant on the day of the incident, had not found blood on the applicant but only a dull trauma on her right scapula. That could have been occasioned by a blow by or onto a blunt object. Thus, it was possible that the applicant had inflicted the injury on herself. Therefore her allegations of savage beating, kicks, pushing, falling down etc. did not correspond to the testimony of the doctors who had examined her. The fact that there had been no visible traces of beating on the applicant was also established through the testimony of G.A., the boy who had helped her move out of the police station, and of Mr Y., the driver who had taken her to the hospital.
However, the court noted that the inquiry whether the applicant had been subjected to violence was not part of the subject-matter of the case before it.
30. The applicant appealed to the Gabrovo Regional Court, which upheld the conviction and sentence on 18 July 1996. The court noted, inter alia, that if the applicant’s allegations of police ill-treatment were true, she could request the opening of criminal proceedings against the police officers involved.
31. The applicant then petitioned the Supreme Court of Cassation for review. At the hearing before that court a prosecutor of the Chief Prosecutor’s Office appeared who pleaded for the dismissal of the applicant’s petition. The Supreme Court of Cassation dismissed the petition in a judgment of 25 July 1997.
In its judgment the Supreme Court of Cassation held, inter alia:
“Counsel for [the applicant] calls into question the testimony of [chief-sergeant D.], who, she asserts, is ‘very interested in the outcome of the case’, this interest being presumed from the allegations of [the applicant] that D. had ‘savagely beaten her’. This argument is groundless ... The [applicant’s] assertions that she had been beaten are completely unsubstantiated. In fact, the traces of the ‘savage beating’ were a subcutaneous haematoma above the left ear and an identical haematoma in the lower part of the right thoracic half ... That could have been caused by a blow or a self-inflicted blow with or onto a blunt object ... These injuries and the statements of [the applicant] that she fell unconscious, had vertigo, nausea and had vomited – for the ascertaining of which no objective medical criteria exist – led to her hospitalisation during which no indications of brain damage were found...
Beside being unproven, the allegation of [the applicant] that ... she was the victim of an offence on the part of the police officers is also illogical. The police officers did not have any reason to be rude toward [the applicant], or, in any event, not until [she] by words and conduct demonstrated her disparagement toward [them] and their work...”
32. On 6 April 1995, after the applicant was admitted to hospital, her daughter filed a complaint with the Sevlievo District Prosecutor’s Office, alleging that her mother had been beaten by chief-sergeant D. The complaint was dealt with by prosecutor G., the same prosecutor who drew up the indictment in the criminal case against the applicant. On 26 April 1995 he ordered that the complaint be sent for verification to the District Police Department. In the accompanying letter he requested that the following facts be established within fourteen days:
“Who brought [the applicant] to the Police Department[?] When and for what reasons[?] Was she hit[?] With what[?] In which part of the body[?] What injuries did she sustain[?]”
33. On 27 April 1995 the head of the District Police Department assigned the verification to lieutenant R., the officer who had arrested the applicant and who had conducted the inquiry against her.
34. On 5 May 1995 lieutenant R. concluded the verification. He sent a report to the head of the District Police Department, asserting that the applicant had not been beaten and recommending that no criminal investigation be opened. The applicant submits that the lieutenant did not independently establish the facts but instead relied on testimony given in the criminal investigation against her to corroborate his conclusion.
35. On 1 June 1995 the results from the verification were sent to the District Prosecutor’s Office and given to prosecutor G. Apparently no further investigative actions were undertaken by the prosecution with regard to the complaint. No decision to open or to refuse the opening of a criminal investigation was issued.
36. In a separate effort to initiate an investigation, on 11 April 1995 the applicant’s daughter filed a complaint with the Ministry of Internal Affairs in Sofia. The Ministry requested information form the District Directorate of Internal Affairs in Gabrovo, which in turn requested information from the Sevlievo District Police Department.
37. On 17 April 1995 the applicant’s daughter also filed a complaint with the Directorate of the National Police in Gabrovo, which three days later ordered the District Directorate of Internal Affairs to conduct an inquiry.
38. On 11 May 1995 the District Directorate of Internal Affairs wrote to the applicant’s daughter and to the Ministry, stating that it had not been established that chief-sergeant D. had engaged in any unlawful actions. The letter added that an investigation had been opened into the matter, citing the case-number of the criminal investigation against the applicant.
39. On 17 May 1995 the Ministry sent a reply to the applicant’s daughter, stating that the prosecution authorities were handling the case and that the Ministry would announce its position after they prosecution had finished dealing with it.
40. In June 1996 Amnesty International published a report under the heading: “Bulgaria: Shootings, deaths in custody, torture and ill-treatment” (AI Index: EUR 15/07/96), in which, on page 23, the case of the applicant was described. Upon receiving a query from Amnesty International, the Ministry of Internal Affairs sent a reply, in which it relayed that the applicant had been put in the detention room by sergeants D. and U., but asserted that the applicant had not been beaten or ill-treated during her stay in the police station.
41. In its issue of 22-28 July 1996 a national weekly newspaper, “168 Hours”, published an article describing the case of the applicant, the criminal prosecution against her and the investigation into her daughter’s complaints under the heading “A granny battered a police officer on his place of work”.
42. Section 40(1) of the National Police Act, as in force at the material time, read, as relevant:
“... police [officers] may use ... force ... when performing their duties only if they [have no alternative course of action] in cases of:
1. resistance or refusal [by a person] to obey a lawful order; ...
5. attack against citizens or police [officers]; ...
Section 41(2) provided that the use of force had to be commensurate to, inter alia, the specific circumstances and the personality of the offender. Section 41(3) imposed upon police officers the duty to “protect, if possible, the health ... of persons against whom [force was being used].”
43. Articles 128, 129 and 130 of the CC make it an offence to cause a light, intermediate or severe bodily injury to another. Article 131 § 1 (2) provides that if the injury is caused by a police officer in the course of, or in connection with, the performance of his or her duties the offence is an aggravated one. This offence is a publicly prosecuted one (Article 161 of the CC).
44. Under Bulgarian law criminal proceedings for publicly prosecuted offences can be opened only by the decision of a prosecutor or of an investigator (Article 192 of the Code of Criminal Procedure (“CCP”)). The prosecutor or the investigator must open an investigation whenever he or she receives information, supported by sufficient evidence, that an offence might have been committed (Articles 187 and 190 of the CCP). During the relevant period the CCP provided that if the information to the prosecuting authorities was not supported by evidence, the prosecutor had to order a preliminary inquiry (verification) in order to determine whether the opening of a criminal investigation was warranted (Article 191 of the CCP).
VIOLATED_ARTICLES: 3


ITEMID: 001-114243
LANGUAGEISOCODE: ENG
RESPONDENT: BIH;HRV;MKD;SRB;SVN
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF ALIŠIĆ AND OTHERS v. BOSNIA AND HERZEGOVINA, CROATIA, SERBIA, SLOVENIA AND "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
IMPORTANCE: 3
CONCLUSION: Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions) (Serbia);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions) (Slovenia);No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions) (Bosnia and Herzegovina) (Croatia) (the former Yugoslav Republic of Macedonia);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy) (Serbia);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy) (Slovenia);No violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy) (Bosnia and Herzegovina) (Croatia) (the former Yugoslav Republic of Macedonia);Respondent State to take measures of a general character (Article 46 - Pilot judgment;Systemic problem;General measures);Respondent State to take measures of a general character (Article 46 - Pilot judgment;Systemic problem;General measures);Non-pecuniary damage - award
JUDGES: Lech Garlicki;Mirjana Lazarova Trajkovska;Nicolas Bratza
TEXT: 6. The applicants were born in 1976, 1949 and 1952, respectively, and live in Germany.
7. Before the dissolution of the Socialist Federal Republic of Yugoslavia (“the SFRY”), Ms Ališić and Mr Sadžak deposited foreign currency in the then Ljubljanska Banka Sarajevo and Mr Šahdanović in the Tuzla branch of Investbanka. It would appear that the balance in their accounts is 4,715.56 German marks (DEM), DEM 129,874.30 and DEM 63,880.44, respectively. Mr Šahdanović also has 73 US dollars (USD) and 4 Austrian schillings in his accounts.
8. Until the 1989/90 economic reforms, the commercial banking system consisted of basic and associated banks. Basic banks were as a rule founded and controlled by socially owned companies based in the same territorial unit (that is, in one of the Republics – Bosnia and Herzegovina, Croatia, Macedonia, Montenegro, Serbia and Slovenia – or Autonomous Provinces – Kosovo and Vojvodina). The founders of Ljubljanska Banka Sarajevo were thus 16 socially owned companies from Bosnia and Herzegovina (such as Energoinvest Sarajevo, Gorenje Bira Bihać, Šipad Sarajevo, Velepromet Visoko, Đuro Salaj Mostar) and Pamučni kombinat Vranje from Serbia. At least two basic banks could form an associated bank, while preserving their separate legal personality. In 1978 Ljubljanska Banka Sarajevo, Ljubljanska Banka Zagreb, Ljubljanska Banka Skopje and some other basic banks thus founded an associated bank – Ljubljanska Banka Ljubljana. Similarly, in 1978 Investbanka and a number of other basic banks founded Beogradska udružena Banka Beograd. In the SFRY there were approximately 150 basic and 9 associated banks (Jugobanka Beograd, Beogradska Udružena Banka, Privredna Banka Sarajevo, Vojvođanska Banka Novi Sad, Kosovska Banka Priština, Udružena Banka Hrvatske Zagreb, Ljubljanska Banka Ljubljana, Stopanska Banka Skopje and Investiciona Banka Titograd).
9. Being hard-pressed for hard currency, the SFRY made it attractive for its expatriates and other citizens to deposit foreign currency with its banks. Such deposits earned high interest (the annual interest rate often exceeded 10%). Moreover, they were guaranteed by the State (see section 14(3) of the Foreign-Currency Transactions Act 1985 and section 76(1) of the Banks and Other Financial Institutions Act 1989). The State guarantee was to be activated in case of the bankruptcy or “manifest insolvency” of a bank at the request of the bank (section 18 of the Banks and Other Financial Institutions Insolvency Act 1989 and the relevant secondary legislation). None of the banks under consideration in the present case made such a request. It should be emphasised that savers could not request the activation of the guarantee on their own. They were nevertheless entitled, in accordance with the Civil Obligations Act 1978, to collect their deposits at any time, together with accrued interest, from basic banks (see sections 1035 and 1045 of that Act).
10. Beginning in the mid 1970s, the commercial banks incurred foreignexchange losses because the dinar exchange rate depreciated. In response, the SFRY set up a system for “redepositing” of foreign currency, allowing commercial banks to transfer citizens’ foreign-currency deposits to the National Bank of Yugoslavia (“the NBY”), which assumed the currency risk (see section 51(2) of the Foreign-Currency Transactions Act 1977). Although the system was optional, commercial banks did not have another option as they were not allowed to maintain foreign-currency accounts with foreign banks, as was necessary to make payments abroad, nor were they allowed to grant foreign-currency loans. Virtually all foreign currency was therefore redeposited with the NBY. It should be emphasised, however, that only a fraction of that money was physically transferred to the NBY (see Kovačić and Others v. Slovenia [GC], nos. 44574/98, 45133/98 and 48316/99, §§ 36 and 39, 3 October 2008; see also decision AP 164/04 of the Constitutional Court of Bosnia and Herzegovina of 1 April 2006, § 53).
11. With regard to Ljubljanska Banka Sarajevo, the redepositing scheme functioned as follows. Pursuant to a series of agreements between that bank, Ljubljanska Banka Ljubljana, the National Bank of Bosnia and Herzegovina and the National Bank of Slovenia, Ljubljanska Banka Sarajevo had to ship on a monthly basis any difference between foreign currency deposited and foreign currency withdrawn to the National Bank of Slovenia. The foreign currency so shipped was recorded as a claim of Ljubljanska Banka Sarajevo against the NBY. The Slovenian Government maintained in the present case that the National Bank of Slovenia then shipped all those funds to the NBY, but they failed to provide any proof in that regard. They proved only that a part of those funds had been shipped back to Ljubljanska Banka Sarajevo at the request of that bank to meet its liquidity needs (in the period when more foreign currency was withdrawn than deposited). The exact figures are: in 1984 DEM 57,389, 894 was shipped to Ljubljana and DEM 150,187 back to Sarajevo; in 1985 DEM 59,465,398 was shipped to Ljubljana and DEM 71,270 back to Sarajevo, in 1986 DEM 19,794,416 was shipped to Ljubljana and DEM 1,564,823 back to Sarajevo, and so on. In total, between 1984 and 1991 DEM 244,665,082 was shipped to Ljubljana and DEM 41,469,528 (that is, less than 17%) back to Sarajevo.
12. Another relevant factor is that basic banks were granted dinar loans (initially, interest-free) by the NBY in return for the value of the redeposited foreign currency. The dinars so received were used by basic banks to give credits, at interest rates below the rate of inflation, to companies based, as a rule, in the same territorial unit (for instance, in the case of Ljubljanska Banka Sarajevo, such credits were given to Polietilenka Bihać, Gorenje Bira Bihać, Šipad Šator Glamoč, Bilećanka Bileća, UPI Sarajevo, Soko Komerc Mostar, Rudi Čajavec Banja Luka, Velepromet Visoko, and so on).
13. In 1988 the redepositing system was brought to an end (by virtue of section 103 of the Foreign-Currency Transactions Act 1985, as amended on 15 October 1988). Banks were given permission to open foreign-currency accounts with foreign banks. Ljubljanska Banka Sarajevo, like other banks, seized that opportunity and deposited in total USD 13.5 million with foreign banks in the period from October 1988 until December 1989.
14. Within the framework of the 1989/90 reforms, the SFRY abolished the system of basic and associated banks described above. This shift in the banking regulations allowed some basic banks to opt for an independent status, while other basic banks became branches (without legal personality) of the former associated banks to which they had formerly belonged. On 1 January 1990 Ljubljanska Banka Sarajevo thus became a branch (without legal personality) of Ljubljanska Banka Ljubljana and the latter took over the former’s rights, assets and liabilities. By contrast, Investbanka became an independent bank with its headquarters in Serbia and a number of branches in Bosnia and Herzegovina (including the Tuzla branch at which Mr Šahdanović had accounts). Moreover, the convertibility of the dinar was declared and very favourable exchange rates were fixed by the NBY. It led to a massive withdrawal of foreign currency from commercial banks. The SFRY therefore resorted to emergency measures restricting to a large extent the withdrawals of foreign-currency deposits. For example, as of December 1990, when section 71 of the Foreign-Currency Transactions Act 1985 was amended, savers could use their savings only to pay for imported goods or services for their own or close relatives’ needs, to purchase foreign-currency bonds, to make testamentary gifts for scientific or humanitarian purposes, or to pay for life insurance with a local insurance company (before, they could use their deposits also to pay for goods and services abroad). In addition, section 3 of a decision of the SFRY Government of April 1991, which was in force until 8 February 1992, and section 17c of a decision of the NBY of January 1991, which the Constitutional Court of the SFRY declared unconstitutional on 22 April 1992, limited the amount which savers could withdraw or use for the above purposes to DEM 500 at a time, but not more than DEM 1,000 per month.
15. The SFRY disintegrated in 1991/92. In the successor States, foreign currency deposited beforehand is customarily referred to as “old” or “frozen” foreign-currency savings.
16. In 1992 Bosnia and Herzegovina took over the statutory guarantee for “old” foreign-currency savings from the SFRY (see section 6 of the SFRY Legislation Application Act 1992). Although the relevant statutory provisions were not clear in that regard, the National Bank of Bosnia and Herzegovina held that the guarantee covered “old” foreign-currency savings in domestic banks only (see its report 63/94 of 8 August 1994).
17. While during the war all “old” foreign-currency savings remained frozen, withdrawals were exceptionally allowed on humanitarian grounds and in some other special cases (see the relevant secondary legislation).
18. After the 1992-95 war, each of the Entities (the Federation of Bosnia and Herzegovina – “the FBH” – and the Republika Srpska) enacted its own legislation on “old” foreign-currency savings. Only the FBH legislation is relevant in the present case, given that the branches in issue are situated in that Entity. In 1997 the FBH assumed liability for “old” foreign-currency savings in banks and branches placed in its territory (see section 3(1) of the Claims Settlement Act 1997 and the Non-Residents’ Claims Settlement Decree 1999). Such savings remained frozen, but they could be used to purchase State-owned flats and companies under certain conditions (section 18 of the Claims Settlement Act 1997, as amended in August 2004).
19. In 2004 the FBH enacted new legislation. It undertook to repay “old” foreign-currency savings in domestic banks in that Entity, regardless of the citizenship of the depositor concerned. Its liability for such savings in the branches of Ljubljanska Banka Ljubljana and Investbanka were expressly excluded (see section 9(2) of the Settlement of Domestic Debt Act 2004).
20. In 2006 the liability for “old” foreign-currency savings in domestic banks passed from the Entities to the State. Liability for such savings at the local branches of Ljubljanska Banka Ljubljana and Investbanka are again expressly excluded, but the State must help the clients of those branches to obtain the payment of their savings from Slovenia and Serbia, respectively (see section 2 of the Old Foreign-Currency Savings Act 2006). In addition, all proceedings concerning “old” foreign-currency savings ceased by virtue of law (see section 28 of that Act; that provision was declared constitutional by decision U 13/06 of the Constitutional Court of Bosnia and Herzegovina of 28 March 2008, § 35). The Constitutional Court has examined numerous individual complaints about the failure of Bosnia and Herzegovina and its Entities to pay back “old” foreign-currency savings at the domestic branches of Ljubljanska Banka Ljubljana and Investbanka: it held that neither Bosnia and Herzegovina nor its Entities were liable and ordered instead the State to help the clients of those branches to recover their savings from Slovenia and Serbia, respectively (see, for example, decisions AP 164/04 of 1 April 2006, AP 423/07 of 14 October 2008 and AP 14/08 of 21 December 2010).
21. In 1990 Ljubljanska Banka Sarajevo became a branch, without legal personality, of Ljubljanska Banka Ljubljana and the latter took over the former’s rights, assets and liabilities. Pursuant to the companies register, the Sarajevo branch acted on behalf and for the account of the parent bank. On 31 December 1991 the amount of foreign-currency savings at the Sarajevo branch was approximately DEM 250,000,000, but it would appear that less than DEM 350,000 was in the vault of the Sarajevo branch on that date. While it is unclear what happened with the remaining sum, it is likely that most of it ended up in Slovenia (see paragraph 11 above).
22. A domestic bank, Ljubljanska Banka Sarajevo, was set up in 1993. It assumed Ljubljanska Banka Ljubljana’s liability for “old” foreign-currency savings at the Sarajevo branch. In 1994 the National Bank of Bosnia and Herzegovina carried out an inspection and noted many shortcomings. First of all, its management had not been properly appointed and it was not clear who its shareholders were. The National Bank therefore appointed a director of Ljubljanska Banka Sarajevo. Secondly, as a domestic bank, Ljubljanska Banka Sarajevo could not have assumed a foreign bank’s liability for “old” foreign-currency savings, as this would impose new financial obligations on the State (as the State was the statutory guarantor for “old” foreign-currency savings in all domestic banks). The National Bank ordered that a closing balance sheet for the Sarajevo branch of Ljubljanska Banka Ljubljana as at 31 March 1992 be drawn up urgently and that its relations with the parent bank be defined. However, according to the companies register, Ljubljanska Banka Sarajevo had remained liable for “old” foreign-currency savings at Ljubljanska Banka Ljubljana’s Sarajevo branch until November 2004 (see paragraph 24 below). Accordingly, it continued to administer the savings of clients of the Sarajevo branch; those savings were used in the privatisation process in the FBH (see paragraph 18 above); and a domestic court ordered Ljubljanska Banka Sarajevo to pay those savings in one case (see Višnjevac v. Bosnia and Herzegovina (dec.), no. 2333/04, 24 October 2006).
23. In 2003 the FBH Banking Agency placed that domestic bank under its provisional administration for the reason that it had undefined relations with the foreign Ljubljanska Banka Ljubljana.
24. By virtue of an amendment to the Companies Register Act 2000, in 2003 the FBH Parliament extended the statutory time-limit for the deletion of war-time entries in the companies register until 10 April 2004. Shortly thereafter, in November 2004 the Sarajevo Municipal Court decided that the domestic Ljubljanska Banka Sarajevo was not the successor of the Sarajevo branch of the foreign Ljubljanska Banka Ljubljana; that it was not liable for “old” foreign-currency savings in that branch; and that, as a result, the 1993 entry in the companies register stating otherwise must be deleted.
25. In 2006 the domestic Ljubljanska Banka Sarajevo sold its assets and let out premises and equipment belonging to Ljubljanska Banka Ljubljana’s Sarajevo branch to a Croatian company which, in return, undertook to pay debts of Ljubljanska Banka Sarajevo. While endorsing that agreement, the FBH Government emphasised that all premises and archives of Ljubljanska Banka Ljubljana’s Sarajevo branch remained under the care of the FBH Government pending the final determination of the status of that branch.
26. In 2010 the competent court started bankruptcy proceedings against the domestic Ljubljanska Banka Sarajevo. They are still pending.
27. The Tuzla branch of Investbanka has at all times had the status of a branch without legal personality. The size of “old” foreign-currency savings at that branch was approximately USD 67 million (approximately DEM 100 million) on 31 December 1991. The branch closed on 1 June 1992 and it has never resumed its activities. It is unclear what happened with its funds, but given the manner in which the redepositing scheme was administered (see paragraph 11 above), it is likely that most of them ended up in Serbia.
28. In 2002 the competent court in Serbia made a bankruptcy order against Investbanka. The Serbian authorities then sold the premises of the FBH branches of Investbanka (those in the Republika Srpska had been sold in 1999). The bankruptcy proceedings are still pending.
29. In 2010 the FBH Government placed the premises and archives of the FBH branches of Investbanka under its care, but it would appear that Investbanka no longer has any premises or archives in the FBH.
30. In 2011, at the request of the FBH authorities, the Serbian authorities started a criminal investigation into the manner in which the archives of the Tuzla branch had been transferred to the Serbian territory in 2008.
31. The Croatian Government argued that they had repaid “old” foreign-currency savings in domestic banks and their foreign branches, regardless of the citizenship of the depositor concerned. Indeed, it is clear that they repaid such savings of Bosnian-Herzegovinian citizens in Bosnian-Herzegovinian branches of Croatian banks. However, the Slovenian Government provided decisions of the Supreme Court of Croatia (Rev 3015/1993-2 of 1994, Rev 3172/1995-2 of 1996 and Rev 1747 /1995-2 of 1996) holding that the term used in that legislation (građanin) meant a Croatian citizen and argued that it was not excluded that the Bosnian-Herzegovinian citizens in issue were also Croatian citizens or that an ad hoc agreement had been concluded.
32. Croatia also repaid its citizens’ “old” foreign-currency savings which had been transferred from Ljubljanska Banka Ljubljana’s Zagreb branch to domestic banks at the request of the depositors concerned (see section 14 of the Old Foreign-Currency Savings Act 1993 and the relevant secondary legislation). Apparently, about two thirds of all clients of that branch used that possibility. As to its remaining clients, whose “old” foreign-currency savings allegedly amount to approximately DEM 300 million, some of them have pursued civil proceedings in the Croatian courts and 63 of them have obtained their “old” foreign-currency savings from a forced sale of assets of that branch located in Croatia (decisions of the Osijek Municipal Court of 8 April 2005 and 15 June 2010). Some others are pursuing civil proceedings in the Slovenian courts (see paragraph 38 below).
33. In the direct aftermath of the dissolution of the SFRY, “old” foreigncurrency savings in domestic banks remained frozen, but withdrawals were exceptionally allowed on humanitarian grounds regardless of the citizenship of the depositor concerned (see the relevant secondary legislation).
34. In 1998 and then again in 2002 Serbia agreed to repay “old” foreign-currency savings in domestic branches of domestic banks of its citizens and of citizens of all States other than the successor States of the SFRY. All savings of citizens of the SFRY successor States and all savings in domestic banks’ branches located in those States remained frozen pending succession negotiations. Moreover, all proceedings concerning “old” foreign-currency savings ceased by virtue of law in accordance with sections 21 and 22 of the Old Foreign-Currency Savings Act 1998 and sections 21 and 36 of the Old Foreign-Currency Savings Act 2002.
35. In January 2002 the competent court in Serbia made a bankruptcy order against Investbanka. As a result, the State guarantee on “old” foreigncurrency savings was activated (section 18 of the Banks and Other Financial Institutions Insolvency Act 1989 and section 135 of the ForeignCurrency Transactions Act 1995). 322 clients of BosnianHerzegovinian branches of Investbanka unsuccessfully applied to be paid back within the context of the bankruptcy proceedings; 20 of them then pursued civil proceedings against Investbanka, but to no avail. The bankruptcy proceedings are still pending.
36. In 1991 Slovenia assumed the statutory guarantee from the SFRY for “old” foreign-currency savings in domestic branches of all banks, regardless of the citizenship of the depositor concerned (see Article 19 § 3 of the Basic Constitutional Charter Constitutional Act 1991 and section 1 of the Old Foreign-Currency Savings Act 1993). While, as a rule, anyone who shows legal interest may petition that abstract constitutionality review proceedings be initiated (section 24 of the Constitutional Court Act 2007), the Slovenian Constitutional Court held that the Basic Constitutional Charter Constitutional Act 1991 was not subject to such a review (see its decisions nos. U-I-332/94 of 11 April 1996 and U-I-184/96 of 20 June 1996).
37. After futile attempts to register the Sarajevo branch of Ljubljanska Banka Ljubljana as a separate bank (see the correspondence between the NBY and the National Bank of Bosnia and Herzegovina of October 1991 stressing the unlawfulness of such proposals as Slovenia had meanwhile become an independent State and Ljubljanska Banka Ljubljana a foreign bank), Slovenia nationalised and then, in 1994, restructured Ljubljanska Banka Ljubljana itself. A new bank, Nova Ljubljanska Banka, took over Ljubljanska Banka Ljubljana’s domestic assets and liabilities. The old bank retained the liability for “old” foreign-currency savings in its branches in the other successor States and the related claims against the NBY.
38. In 1997 all proceedings concerning “old” foreign-currency savings in the old Ljubljanska Banka’s branches in the other successor States were stayed pending the outcome of the succession negotiations. In December 2009 the Constitutional Court of Slovenia, upon a constitutional petition of two Croatian savers, declared that measure unconstitutional. The Ljubljana District Court has thereafter rendered numerous judgments ordering the old Ljubljanska Banka to pay “old” foreign-currency savings in its Sarajevo and Zagreb branches together with interest. It held that the relationship between the old Ljubljanska Banka and its clients at those branches was of a privatelaw nature. The fact that some foreign currency had allegedly been shipped to the NBY and that succession negotiations were pending was considered irrelevant. Similarly, it considered irrelevant the decisions regarding the status of the Sarajevo branch set out in paragraphs 22-24 above. At least one such judgment, concerning the Sarajevo branch, has become final (judgment P 119/1995-I of 16 November 2010). A number of clients of the Sarajevo and Zagreb branches have pursued civil proceedings also against the Republic of Slovenia, but in vain. The Ljubljana District Court has rejected such claims in three cases (as no appeals have been lodged, those decisions have become final). Around 10 similar cases are apparently still pending.
39. It paid back “old” foreign-currency savings in domestic banks and local branches of foreign banks, such as the Skopje branch of Ljubljanska Banka Ljubljana, regardless of the citizenship of the depositor concerned.
40. The matter of State succession is regulated by customary rules, partly codified in the 1978 Vienna Convention on Succession of States in respect of Treaties and the 1983 Vienna Convention on Succession of States in respect of State Property, Archives and Debts. Although the latter treaty is not yet in force and only three respondent States are parties to it as of today (Croatia, Slovenia and the former Yugoslav Republic of Macedonia), it is a well-established principle of international law that, even if a State has not ratified a treaty, it may be bound by one of its provisions in so far as that provision reflects customary international law, either codifying it or forming a new customary rule (see Cudak v. Lithuania [GC], no. 15869/02, § 66, ECHR 2010, and judgment of the International Court of Justice in the North Sea Continental Shelf Cases of 20 February 1969, § 71).
41. The fundamental rule is that States must together settle all aspects of succession by agreement (see Opinion No. 9 of the Arbitration Commission of the International Conference on the Former Yugoslavia, and Article 6 of the 2001 Guiding Principles on State Succession in Matters of Property and Debts of the Institute of International Law). If one of the States refused to cooperate, it would be in breach of that obligation and would be liable internationally (Opinion No. 12 of the Arbitration Commission). While it is not required that each category of property and debts of a predecessor State be divided in equitable proportions, an overall outcome must be an equitable division (Article 41 of the 1983 Vienna Convention; Opinion No. 13 of the Arbitration Commission; Articles 8, 9 and 23 of the Guiding Principles).
42. This Agreement was the result of nearly ten years of negotiations under the auspices of the International Conference on the former Yugoslavia and the High Representative (an international administrator appointed under Annex 10 to the General Framework Agreement for Peace in Bosnia and Herzegovina). It was signed on 29 June 2001 and entered into force between Bosnia and Herzegovina, Croatia, Serbia and Montenegro (later succeeded by Serbia), Slovenia and the former Yugoslav Republic of Macedonia on 2 June 2004.
43. The issue of “old” foreign-currency savings was a contentious one. The successor States had different views as to whether that issue should be dealt with as a liability of the SFRY under Annex C (Financial Assets and Liabilities) or as a private-law issue under Annex G (Private Property and Acquired Rights). Neither could those States agree whether the guarantees of the SFRY of “old” foreign-currency savings should be taken over by the State in which the parent bank in issue had its head office or by the State in which the deposit had actually been made. The following provisions were eventually included in Annex C to the Agreement:
“Other financial liabilities [of the SFRY] include:
(a) guarantees by the SFRY or its National Bank of Yugoslavia of hard currency savings deposited in a commercial bank and any of its branches in any successor State before the date on which it proclaimed independence; ...”
“Guarantees by the SFRY or its NBY of hard currency savings deposited in a commercial bank and any of its branches in any successor State before the date on which it proclaimed its independence shall be negotiated without delay taking into account in particular the necessity of protecting the hard currency savings of individuals. This negotiation shall take place under the auspices of the Bank for International Settlements.”
44. In 2001/2 four rounds of negotiations regarding the distribution of the SFRY’s guarantees of “old” foreign-currency savings were held. As the successor States could not reach an agreement, in September 2002 the Bank for International Settlements (“the BIS”) informed them that the expert, Mr Meyer, had decided to terminate his involvement in the matter and that the BIS had no further role to play in this regard. It concluded as follows:
“If, however, all five successor States were to decide at a later stage to enter into new negotiations about guarantees of hard currency savings deposits and were to seek the BIS’ assistance in this regard, the BIS would be prepared to give consideration to providing such assistance, under conditions to be agreed.”
It appears that four successor States (all but Croatia) notified the BIS of their willingness to continue the negotiations shortly thereafter. Croatia did so in October 2010 and received a response in November 2010 which, in so far as relevant, reads as follows:
“...the BIS did recently reconsider this issue and believes that its contribution to any new round of negotiations, as part of a good offices role, could not bring added value, also bearing in mind the amount of time which lapsed since the last round of negotiations, as well as its current priorities in the field of monetary and financial stability. However, we would like to emphasise that the organisation of the bi-monthly meetings in Basel offers the practical opportunity for the governors of the successor States to discuss this matter between them on an informal basis at the BIS.”
45. It should be noted that a comparable issue of the SFRY’s guarantees of savings deposited with the Post Office Savings Bank and its branches had been settled outside the negotiations of the Agreement on Succession Issues, in that each of the States had taken over the guarantees as to the branches in its territory.
46. In accordance with Article 4 of the Agreement on Succession Issues, a Standing Joint Committee of senior representatives of the successor States was established to monitor the effective implementation of the Agreement and to serve as a forum in which issues arising in the course of its implementation could be discussed. It has so far met three times: in 2005, in 2007 and in 2009.
47. The following provisions of this Agreement are also relevant in this case:
“(1) Differences which may arise over the interpretation and application of this Agreement shall, in the first place, be resolved in discussion among the States concerned.
(2) If the differences cannot be resolved in such discussions within one month of the first communication in the discussion the States concerned shall either
(a) refer the matter to an independent person of their choice, with a view to obtaining a speedy and authoritative determination of the matter which shall be respected and which may, as appropriate, indicate specific time-limits for actions to be taken; or
(b) refer the matter to the Standing Joint Committee established by Article 4 of this Agreement for resolution.
(3) Differences which may arise in practice over the interpretation of the terms used in this Agreement or in any subsequent agreement called for in implementation of the Annexes to this Agreement may, additionally, be referred at the initiative of any State concerned to binding expert solution, conducted by a single expert (who shall not be a national of any party to this Agreement) to be appointed by agreement between the parties in dispute or, in the absence of agreement, by the President of the Court of Conciliation and Arbitration within the OSCE. The expert shall determine all questions of procedure, after consulting the parties seeking such expert solution if the expert considers it appropriate to do so, with the firm intention of securing a speedy and effective resolution of the difference.
(4) The procedure provided for in paragraph (3) of this Article shall be strictly limited to the interpretation of terms used in the agreements in question and shall in no circumstances permit the expert to determine the practical application of any of those agreements. In particular the procedure referred to shall not apply to
(a) The Appendix to this Agreement;
(b) Articles 1, 3 and 4 of Annex B;
(c) Articles 4 and 5(1) of Annex C;
(d) Article 6 of Annex D.
(5) Nothing in the preceding paragraphs of this Article shall affect the rights or obligations of the Parties to the present Agreement under any provision in force binding them with regard to the settlement of disputes.”
“This Agreement shall be implemented by the successor States in good faith in conformity with the Charter of the United Nations and in accordance with international law.”
48. The obligation flowing from a pactum de negotiando, to negotiate with a view to concluding an agreement, must be fulfilled in good faith according to the fundamental principle pacta sunt servanda.
49. The International Court of Justice stated in its judgment of 20 February 1969 in the North Sea Continental Shelf Cases (§ 85):
“...the parties are under an obligation to enter into negotiations with a view to arriving at an agreement, and not merely to go through a formal process of negotiation as a sort of prior condition for the automatic application of a certain method of delimitation in the absence of agreement; they are under an obligation so to conduct themselves that the negotiations are meaningful, which will not be the case when either of them insists upon its own position without contemplating any modifications of it...”
50. The decision of the Arbitral Tribunal for the Agreement on German External Debts in the case of Greece v. the Federal Republic of Germany of 26 January 1972 reads, in so far as relevant, as follows (§§ 62-65):
“However, a pactum de negotiando is also not without legal consequences. It means that both sides would make an effort, in good faith, to bring about a mutually satisfactory solution by way of a compromise, even if that meant the relinquishment of strongly held positions earlier taken. It implies a willingness for the purpose of negotiation to abandon earlier positions and to meet the other side part way. The language of the Agreement cannot be construed to mean that either side intends to adhere to its previous stand and to insist upon the complete capitulation of the other side. Such a concept would be inconsistent with the term ‘negotiation’. It would be the very opposite of what was intended. An undertaking to negotiate involves an understanding to deal with the other side with a view to coming to terms. Though the Tribunal does not conclude that Article 19 in connection with paragraph II of Annex I absolutely obligates either side to reach an agreement, it is of the opinion that the terms of these provisions require the parties to negotiate, bargain, and in good faith attempt to reach a result acceptable to both parties and thus bring an end to this long drawn out controversy...
The agreement to negotiate the disputed monetary claims, in this case, necessarily involves a willingness to consider a settlement. This is true, even though the dispute extends not only to the amount of the claims but to their existence as well. The principle of settlement is not thereby affected. Article 19 does not necessarily require that the parties resolve the various legal questions on which they have disagreed. For example, it does not contemplate that both sides are expected to see eye to eye on certain points separating them, such as whether the disputed claims legally exist or not, or whether they are government or private claims. As to these points, the parties, in effect, have agreed to disagree but, notwithstanding their contentions with regard to them, they did commit themselves to pursue negotiations as far as possible with a view to concluding an agreement on a settlement...
The Tribunal considers that the underlying principle of the North Sea Continental Shelf Cases is pertinent to the present dispute. As enunciated by the International Court of Justice, it confirms and gives substance to the ordinary meaning of ‘negotiation’. To be meaningful, negotiations have to be entered into with a view to arriving at an agreement. Though, as we have pointed out, an agreement to negotiate does not necessarily imply an obligation to reach an agreement, it does imply that serious efforts towards that end will be made.”
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