ITEMID: 001-71341
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF NURİ KURT v. TURKEY
IMPORTANCE: 3
CONCLUSION: No violation of Art. 8;No violation of P1-1;Not necessary to examine Art. 6-1;Violation of Art. 13;No violation of Art. 14;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
TEXT: 9. The applicant, Mr Nuri Kurt, is a Turkish citizen who was born in 1954 and currently lives in Diyarbakır, Turkey. Until 1994 the applicant lived in Suçıktı, a village of the Kocaköy district in the province of Diyarbakır.
10. The application concerns the alleged destruction of the applicant’s house by State security forces and village guards, and the national authorities’ refusal to allow the applicant to return to his village.
11. The facts surrounding the alleged destruction of the applicant’s house and his inability to return to his village are in dispute between the parties.
12. In December 1994 a landmine placed on the road to Geyiksırtı, a neighbouring village of Suçıktı, exploded and caused the death of a number of village guards. Security forces from the District Gendarmerie Command in Kocaköy and village guards from the Geyiksırtı village accused the inhabitants of Suçıktı of perpetrating the explosion since they had refused to serve as village guards. They threatened to evacuate the village unless the inhabitants left their homes within a week. Along with a number of fellow villagers, the applicant left his home and moved to Diyarbakır where he currently lives.
13. Sometime in July or August 1995, village guards from the Geyiksırtı village burned the villagers’ crops in Suçıktı. During the incident, a small number of houses caught fire, although the applicant’s house remained intact.
14. On an unspecified date, the applicant learned through his acquaintances that on 22 December 1995, two days before the general elections, security forces and village guards had set fire to his house, along with all other houses in the village.
15. Immediately after the burning of the village, the security forces and village guards arrived in Günalan, a neighbouring village. They required the villagers to assemble in the village square and threatened to burn the houses in Günalan too if the villagers were to vote for HADEP (the People’s Democracy Party) in the forthcoming elections.
16. On 2 February 1996 the applicant, along with some of his fellow villagers, lodged applications with the offices of the Diyarbakır Governor, the Kocaköy District Governor and the Diyarbakır Chief Public Prosecutor. He complained that security forces from the District Gendarmerie Command in Kocaköy and village guards from Geyiksırtı had set fire to his house, along with other houses in the village. He requested that the perpetrators of the act be prosecuted, that the damage he had sustained be redressed and that the required measures be taken in order to enable him and other villagers to return to their homes.
17. On 1 May 1997 the Diyarbakır Chief Public Prosecutor issued a decision of lack of jurisdiction and sent the case file to the office of the Administrative Council in Diyarbakır, in accordance with the Law on the Prosecution of Civil Servants (Memurin Muhakematı Kanunu).
18. On 30 May 1997 the applicant lodged his application with the European Commission of Human Rights alleging violations of Articles 6, 8, 13 and 14 of the Convention, and Article 1 of Protocol No. 1.
19. On 31 May 1997 the Kocaköy District Administrative Council launched an investigation into the applicant’s allegations. The investigation was conducted by a gendarme major, Mr Metin Fırat, who had been appointed as an investigator (muhakkik) by the Commission on the Prosecution of Civil Servants (“the CPCS”).
20. On 3 September 1997 the CPCS decided that most of the houses in Suçıktı had been burned down as a result of a fire which had started in the Haran hamlet of Karaçimen, due to the burning of stubble in a field. The CPCS concluded that no proceedings should be brought against the accused security forces and the village guards. The case file was then sent to the Diyarbakır Regional Administrative Court.
21. On 27 November 1997 the Kocaköy District Administrative Council’s decision was served on the applicant.
22. On 1 December 1997 the applicant filed an objection with the Diyarbakır Regional Administrative Court against the decision given by the CPCS.
23. On 2 December 1997 the Diyarbakır Regional Administrative Court quashed the decision of the CPCS on the ground that the investigation file was incomplete. The court reasoned that the investigating authorities should have heard the applicant before reaching a conclusion on the matter.
24. On 8 July 1998 the CPCS, after completing the investigation file, reiterated its decision of 3 September 1997 that no proceedings should be brought against the security forces and the village guards.
25. On 20 October 1998 the Diyarbakır Regional Administrative Court upheld the decision of the CPCS.
26. On 8 July 1999 the Registry of the Court sent a letter to the applicant’s representative requesting him to provide a copy of the Administrative Court’s decision.
27. On 20 July 1999 the applicant applied to the Diyarbakır Regional Administrative Court’s registry for a copy of its decision of 20 October 1998. The request was rejected, the applicant being informed that he should apply to the Kocaköy District Governor’s office.
28. In July 2000 a group of people, encouraged by unspecified village guards, settled in Suçıktı together with their livestock.
29. On 17 August 2000 the applicant filed a petition with the Kocaköy District Governor’s office requesting permission for his family’s return to Suçıktı and the eviction of these new dwellers from their property. The applicant did not receive any response to his petition.
30. In April 1994 the applicant, along with other villagers, left the Suçıktı village due to pressure by the PKK (the Kurdistan Workers’ Party).
31. On 27 September 1994 a fire started in Haran, a hamlet of the Karaçimen village in Diyarbakır, caused by the burning of stubble in a field. The fire went out of control and spread to the Bozbağlar village, the Gültarla hamlet and the Suçıktı village. Despite the efforts of the Kocaköy Fire Brigade and the village guards from the neighbouring villages, most of the buildings in Suçıktı burned down, although the applicant’s house remained undamaged.
32. On 19 December 1996 the applicant lodged a petition with the Public Prosecutor’s office in Diyarbakır, complaining about the burning down of his house by security forces from the District Gendarmerie Command in Kocaköy and village guards from the Geyiksırtı village.
33. On 17 March 1997 the Diyarbakır Chief Public Prosecutor issued a decision of lack of jurisdiction and sent the case file to the office of the Administrative Council in Diyarbakır, in accordance with the Law on the Prosecution of Civil Servants.
34. On 16 May 1997 the Governor’s office in Diyarbakır initiated an investigation into the applicant’s allegations.
35. On 31 May 1997 a gendarme captain was appointed by the District Gendarmerie Command in Kocaköy to investigate the applicant’s allegations. Between 6 June 1997 and 5 August 1997, the investigator took statements from a total of fourteen witnesses, including some inhabitants of nearby villages, military officers and fire fighters serving in Kocaköy.
36. In view of these statements, the investigator concluded that the houses in Suçıktı had been burned down in September 1994 as a result of a fire which had started in the Haran hamlet of Karaçimen, due to the burning of stubble in a field. He further noted that there were no traces of burning on the wooden parts of the applicant’s house and that, therefore, it could not have been exposed to fire.
37. The investigation conducted by the gendarmes further revealed that the applicant leased his land to two villagers in return for a share of the crop, which fact was confirmed by some villagers and the village mayor (muhtar).
38. Currently, there are inhabitants living and cultivating fields in Suçıktı.
39. In his petition submitted to the Governor’s office in Diyarbakır, the applicant complained about the forced eviction of the inhabitants of Suçıktı and the subsequent burning of the houses in the village by security officers and village guards. The applicant requested that their safe return to their homes be guaranteed, the perpetrators be brought to justice and their damage be redressed.
40. On 1 December 1997 the applicant filed an objection with the Diyarbakır Regional Administrative Court against the decision given by the CPCS, which had held that no prosecution should be initiated against the alleged perpetrators. The applicant complained that the CPCS had conducted a superficial investigation with a view to covering up the crimes.
41. On 20 July 1999 the applicant applied to the Diyarbakır Regional Administrative Court’s registry for copies of its decisions of 2 December 1997 and 20 October 1998. The request was rejected.
42. Until 1994, the witnesses were resident in Suçıktı. They provided separate but, in part, identical statements.
43. Among these witnesses, Mr Yoldaş stated that in 1994 security forces and village guards had exerted pressure upon them into either becoming village guards or vacating the village. Mr Yoldaş and Mr İpek stated that security forces and village guards had been harassing the villagers as they believed that the villagers had been aiding and abetting the PKK. They claimed further that the village had been raided and searched on several occasions and that the villagers had been routinely battered.
44. Mr Yoldaş stated, but none of the other witnesses confirmed, that one night in October or November 1992, unidentified persons opened fire at the village, wounding Mr Yoldaş and killing his 15-year old daughter. Mr Yoldaş heard rumours that the village guards from the Kırmataş and Rıkala villages were responsible for the shootings. He believed that the public prosecutor in charge had conducted a spurious investigation without even taking his statement. He stated that security forces and village guards had threatened to kill the villagers if they filed complaints against the allegedly guilty village guards. Out of fear and ignorance, Mr Yoldaş did not complain to the authorities about such threats.
45. Mr Yoldaş and Mr İpek asserted that in March 1993 security forces and village guards had assembled the villagers in Akrad-Günalan and had tortured them. Mr Abdulbaki İpek elaborated on the incident, stating that he was one of the four victims and that he had suffered three broken ribs. They also submitted that, angered by the landmine explosion, security forces and village guards had come to Suçıktı and had threatened to kill the villagers if they did not vacate the village. Such threats, added to earlier incidents, caused these witnesses and their families to leave the village on an unspecified date. Conversely, Masum Tosin, Hasan Kaya and Mevlude Uçar stated that the fire in September 1994 had taken place six or seven months after they had left the village. In this connection, Mr Tosin and Mr Kaya noted that, after the fire, they had gone to the village to examine the damage. It appears from these statements that at least some of the villagers, including these witnesses and their families, had left the village long before December 1994, the time when the landmine exploded and security forces and village guards allegedly forced the inhabitants of Suçıktı to evict their homes.
46. In response to the Government’s claim that the village was abandoned due to PKK repression, the witnesses explained that PKK militants had never come to Suçıktı, even less terrorized the villagers.
47. Concerning the fire which started in 1994, the witnesses explained that the fire had spread to the Haran hamlet, the Gültarla village and finally to Suçıktı, and had burnt the crops in those areas, including those of the applicant and his brother. They stated that around 20 houses on the west side of Suçıktı had burned down, while the concrete houses and the ones located in the centre and the east side of the village had survived the fire.
48. The witnesses said that they had heard from their acquaintances living in neighbouring villages that, two days before the general elections of 1995 (i.e. 22 December 1995), security forces and village guards had set fire to the houses which had survived the previous fire of 1994. According to Mr Yoldaş and Mr İpek, immediately after the burning down of Suçıktı, security forces and village guards went to the Akrad-Günalan village and threatened to burn that village too if the villagers voted for HADEP in the elections.
49. The witnesses added that, since 1998 or 1999, the authorities had been allowing the Suçıktı villagers to cultivate their fields in association with subcontractors from neighbouring villages. They claimed, however, that the applicant and his brother had been denied such permission.
50. Mr Nifak and Mr Fahrioğlu have lived in the Karaçimen village of the Kocaköy District in Diyarbakır since their childhood. They have been cultivating the applicant’s land since 2002. They stated that on 1 February 2003 they were called to the District Gendarmerie Command in Kocaköy and made to sign some documents, which they had later learned to be their witness statements. Since they were both illiterate they had not been aware of the content of such statements.
51. They further asserted that everybody knew how the village had been evacuated but that they had preferred to remain silent for their own sake.
52. This letter informed all village mayors in Lice about the policy set for an orderly return to the villages previously abandoned because of terrorism. It stated that all villagers were free to return to the villages found suitable for habitation by the respective District Governors.
53. The letter divided villages into three categories in respect of the permitted time for such returns. It gave no indication as to which village fell under which “phase”. It explained that the former inhabitants of certain “phase-II villages” could return to those villages only for cultivation purposes during the day time. The letter did not contain any indication about the phase/category in which Suçıktı falls.
54. According to the letter, no villager was allowed to resettle in or stay overnight in “phase-II” and “phase-III” villages until a decision had been taken by the respective governor’s office to that effect.
55. The letter pointed out the difficulties faced by security forces during the military operations conducted in the rural areas of Lice, Kulp and Hani. It explained that during such operations it was difficult to distinguish terrorists from the villagers wandering around in rural areas. The letter advised that notice be given to villagers to avoid any unfortunate incident for which the authorities would not accept any responsibility.
56. The Human Rights Foundation is a non-governmental organisation with its head office in Ankara, Turkey. Its 1993 Report stated that, from 1990 to 1993, more than 913 villages and hamlets had been evacuated. The 1993 Report maintained that village evacuations had accelerated in 1993, mostly targeting the villages whose inhabitants refused to serve as village guards.
57. The 1994 Report of the TIHV argued that the Government’s policy was to claim that the evacuations and eventual destructions were caused by PKK terror, poverty and the forces of nature. According to the same report, some 50 to 60 villages were burned down in each of the provinces subject to the emergency rule.
58. The 1995 Report maintained that more than 400 villages had been evacuated in 1995. According to the 1996 Report, the State-of-Emergency Regional Governor once mentioned that a total of 918 villages and 1767 hamlets had been evacuated for various reasons, although never admitting that evacuations had been carried out by security forces.
59. The 1997 and 1998 Reports described the Government’s policy of evacuating villages as a systematic “internal security operation” applied throughout the 1990s.
60. The excerpts gave a comprehensive list of burned-down and/or evacuated villages from February 1990 to January 1999. The list did not make any reference to Suçıktı as having been evacuated and destroyed.
61. The excerpts contained several articles reproduced from a daily newspaper Ülkede Gündem, relating to the evacuation of villages and its detrimental effects on the displaced persons. The articles stressed that numerous villagers had filed petitions with the State authorities, complaining that their villages had been burned down by security forces.
62. The articles also emphasized that the Government’s public declarations, which appeared to allow displaced villagers to return to their villages, were unreliable. Whenever villagers had attempted to do so, they were physically denied access to their villages.
63. This report was prepared by a Commission of Inquiry composed of ten members of parliament. According to the report, in 1993 and 1994 the inhabitants of 905 villages and 2,923 hamlets were evicted and forced to move to other regions of the country (p.13). The number of people evicted from 90 villages and 225 hamlets in the province of Diyarbakır, where the Suçıktı village is located, was estimated to be around 50,371 (p.12).
64. The report included a statement by Mr Doğan Hatipoğlu, a former governor of Diyarbakır. Mr Hatipoğlu explained that, during his office, occasional village evacuations by military authorities were brought to his attention. He stated that – although very rarely – he had received complaints about village burnings. According to Mr Hatipoğlu, it was inconceivable to assert that all the villages were vacated due to PKK coercion. He alleged that the Government had failed to take the necessary measures for a healthy resettlement of displaced persons (p.13).
65. The report also referred to the “Human Rights Report – Turkey”, prepared and submitted to the Commission of Inquiry in 1995 by Mr Yavuz Önen, the chairman of the Human Rights Foundation. This latter report dedicated a chapter to immigrants and evacuated villages. It argued that, in 1995, the practice of evacuation of villages and hamlets was widespread. Many houses in villages were either destroyed or made uninhabitable. People were forced to emigrate from the region and pressure was exerted on the inhabitants until they left their villages. In early 1995 there was practically no village or hamlet inhabited except those whose inhabitants agreed to become village guards (p.19).
66. The report of the Commission of Inquiry also referred to the speech delivered at the Turkish Grand National Assembly by Mr Salih Yıldırım, a deputy from Şırnak, on 3 June 1997 on the question of evacuated villages. Mr Yıldırım stated, inter alia, that the villages were evacuated either by the PKK, in order to intimidate those who opposed it, by the authorities since they were unable to protect the villages, or because the inhabitants of those villages refused to become village guards or were suspected of having aided the PKK (p. 20).
67. In conclusion, it was recommended in the report that the inhabitants of the settlement units should be re-housed in the provinces, districts or central villages – rather than hamlets – close to the area where they used to live and that necessary economic measures should be taken with a view to providing employment to the inhabitants of the region, priority being given to the immigrants.
68. In his letters dated 31 May 1999 and 24 March 2000, the applicant provided the Court with copies of title deeds representing the land jointly owned by him and others in Suçıktı, and three colour photographs of what he described as his and some other villagers’ burned-down houses. The applicant’s house and the date of those photos were not specified. There was no indication whether his house was indeed one of them. It was not possible to tell from the pictures whether the houses in question were burned down or had simply deteriorated over the years. The applicant supplied no expert opinion as to the nature of such destruction. Also, there were a number of undamaged houses in the photos.
69. Kocayol District Gendarmerie Command sent a letter to Central Gendarme Station, ordering that various witnesses be summoned to give statements in connection with the investigation in progress.
70. This report was prepared by a gendarme captain from the District Gendarmerie Command in Kocaköy. It contained the findings of the captain after his investigation into the applicant’s allegations of 31 May 1997. It gave an account of witness statements by villagers, army officers and fire fighters, as well as the investigator’s on-site observations.
71. Between 6 June 1997 and 5 August 1997, the investigator took statements from a total of 14 witnesses, including inhabitants of nearby villages, military officers and fire fighters serving in Kocaköy.
72. Behçet Başaran, Şeyhmuz Çakıştır, Salih Yılmaz, Maaz Yalçınkaya, Ahmet Gezer, Habip Ek, Hüseyin Buğdaycı, Kazım Buğdaycı, Abdulhaluk Ek and Mehmet Yıldız are inhabitants of nearby villages. In their individual statements, Şeyhmuz Çakıştır, Ahmet Gezer, Habip Ek, Hüseyin Buğdaycı, Kazım Buğdaycı and Abdulhaluk Ek pointed out that the inhabitants of Suçıktı had left their homes in 1994 because of the mounting coercion exerted by the PKK. Behçet Başaran, Salih Yılmaz and Maaz Yalçınkaya stated that they had rushed to Suçıktı when they heard about the fire in September 1994. They claimed that the fire fighters and village guards had made every effort to put the fire out and that they had not seen any soldier nor had they heard a rumour that soldiers and village guards had started the fire. Mr Başaran, Mr Yılmaz, Mr Yalçınkaya and Mr Gezer further stated that they believed that the fire had stemmed from the burning of wheat stubble.
73. Mehmet Kaya and Abdullah Efe are fire fighters in Kocaköy. In their individual statements, these witnesses explained that they had rushed to Suçıktı immediately after the Mayor’s office had informed them about the fire. They submitted that, despite all efforts, the fire had got out of control and had burned the village, together with some parts of the neighbouring villages. They added that gendarmes and village guards could not have started the fire as there were no soldiers in the area and the village guards were the ones making the most fervent efforts to extinguish the fire.
74. Mustafa Kalfa and Kazım Çelik were gendarme officers. In their separate statements, they asserted that all gendarme operations had been recorded in a book on a daily basis but that there was no record of any operation on 22 December 1995 in Suçıktı. Mr Çelik explained that gendarmes had had no reason to go to Suçıktı as the inhabitants had already abandoned that village. Mr Çelik added that most houses in Suçıktı had been built of adobe, which would explain their natural deterioration over the years.
75. Hüseyin Buğdaycı, Kazım Buğdaycı and Abdulhaluk Ek were village guards. They each stated that the villagers had left their home in 1994 because of PKK terrorism. They noted that everybody in the neighbouring villages knew about the fire in September 1994 and how it had destroyed Suçıktı. They further explained that the applicant was making dishonest claims in an effort to discredit them as village guards.
76. In view of these statements, the investigator concluded that the houses in Suçıktı had been burned down in September 1994 as a result of a fire which had started in the Haran hamlet of Karaçimen, due to the burning of stubble.
77. The report also included photographs of the applicant’s ruined house in Suçıktı. From his examination, the investigator concluded that there were no traces of burning on the wooden parts of the applicant’s house. Accordingly, the investigator concluded that the house could not have been exposed to fire.
78. The investigator further established that the applicant had been leasing his land to two farmers from a neighbouring village in return for a share of the crop, and thereby had been reaping economic benefits from his land.
79. In a decision of 2 December 1997, the Diyarbakır Regional Administrative Court overturned the “non-prosecution” decision of the CPCS. The court reasoned that the applicant’s testimony should have been taken. It therefore ruled that the investigation file was incomplete.
80. Upon the Diyarbakır Regional Administrative Court’s invalidation of the CPCS decision of 3 July 1997 on procedural grounds, the CPCS completed the case file by taking the applicant’s testimony.
81. In his testimony, the applicant admitted that he had not been present in Suçıktı at the time of the burning of his house by security forces and village guards. He claimed that he had heard about the incident from Mahmut Gezer, a resident of the Günalan village. However, in his statements dated 8 July 1998, Mr Gezer submitted that he had not seen or stayed in contact with the applicant since he had left the village in 1994.
82. The decision further indicated that the photographs taken at the site of the alleged incident revealed that the applicant’s house had deteriorated for natural reasons and the fact that it had remained uninhabited for years.
83. Based on such findings, the CPCS reiterated its previous decision that no proceedings should be brought against the accused security forces and the village guards.
84. Upon failed attempts to locate the applicant, the Kocaköy District Governor’s office decided to serve the CPCS’ decision of 8 July 1998 to the applicant by way of an announcement, pursuant to Articles 28 et seq. of the Law on Service of Process no. 7201.
85. On an unspecified date, the announcement appeared in a local newspaper.
86. This report contains the gendarme officers’ findings that the applicant’s house had deteriorated because it had not been inhabited for a long time. The report indicated that the applicant has leased his land for cultivation to two villagers by the names of Emrihan and Zeynar.
87. In September 1994, Mr Kaya was a fire fighter in Kocayol. He and his colleague, Mr Abdullah Efe, were on duty when the fire started in Suçıktı and its vicinity. He and his colleagues immediately rushed to Suçıktı as soon as they heard about the fire from the Mayor’s office. Mr Kaya was driving the fire engine, accompanied by Mr Efe. By the time they arrived, the flames had already surrounded the entire village of Suçıktı. In the meantime, village guards came out to help. It was impossible to cut through the flames surrounding the village. As a matter of priority, they strived to extinguish the utility poles. Before long they ran out of water and were unable to quench the flames, which eventually burned down Suçıktı and the cultivated lands attached to it. Mr Kaya pointed out that he had not seen any military vehicles or gendarmes at the site of the fire. He added that the village guards had made every effort to fight the fire.
88. Mr Çakıştır was a resident of the Günalan village of Kocayol. He stated that the inhabitants of Suçıktı had left their homes due to PKK coercion. When he had heard about the fire, he and his fellow villagers had gone to Suçıktı on tractors. They assisted the fire fighters and the village guards to put out the fire. The fire spread very quickly because of the strong wind and burned down Suçıktı and some parts of the neighbouring villages of Bozbağlar and Günalan. The witness did not hear any rumour that security forces and village guards had started the fire. He explained that the village guards were making every effort to fight the fire. This witness also believed that the fire had started due to the burning of wheat stubble.
89. Mr Başaran lived in the Gültarla hamlet of the Suçıktı village. Like the Government’s other witnesses, Mr Başaran stated that, together with a group of fellow villagers, he had rushed to Suçıktı by tractor when he had heard about the fire. The fighters and village guards had made every effort to extinguish the fire which had been spread by a strong wind. The witness had never heard a rumour that security forces and village guards had started the fire.
90. The witnesses are brothers who lived in the Geyiksırtı hamlet of Suçıktı. In their statements they submitted that the applicant’s allegations regarding the subject matter of the current application were untrue. They explained that the applicant, together with other inhabitants of Suçıktı, had left the village in 1993 or 1994 due to the PKK coercion. They stated that the applicant had made similar allegations in the past, which had also been fabricated. The witnesses added that nobody’s land in Suçıktı or the Geyiksırtı hamlet had been confiscated, and that the villagers could freely cultivate their fields.
91. Mr Buğdaycı was the head of the village guards in the Kocayol District at the relevant time, and resided in the Geyiksırtı hamlet of Suçıktı. This witness stated that the inhabitants of Suçıktı had left their homes in 1994 as a result of PKK coercion and intimidation, and that the applicant had chosen to move to Diyarbakır. He noted that the applicant’s land was being cultivated by two farmers from the Karaçimen village, Mr Zeynel Nifak and Mr Yemlihan Fahrioğlu. Accordingly, the applicant was not denied either the economic use of his land or access thereto.
92. The witnesses lived in the Çıkınılı hamlet of the Karaçimen village in Diyarbakır. They had been breeding livestock in the applicant’s village for many years. They stated that the Suçıktı villagers had left their homes in 1993 and had moved to neighbouring districts and cities. They noted that the fields in the village had been left uncultivated for a while, but from 1996 certain villagers had resumed farming, whereas Nuri Kurt had not. Seeing that there was no farming activity on the applicant’s land, the witnesses offered to cultivate his fields in return for a share of the crop. The witnesses agreed with the applicant on a verbal basis and have been cultivating his fields since 2002.
93. The witnesses claimed that State security forces and village guards had not in any way exerted pressure on them or prevented them from cultivating the applicant’s fields.
94. A full description of the relevant domestic law may be found in Yöyler v. Turkey (no. 26973/95, §§ 37-49, 24 July 2003) and Matyar v. Turkey (no. 23423/94, §§ 93-106, 21 February 2002).
VIOLATED_ARTICLES: 13
NON_VIOLATED_ARTICLES: 14
8


ITEMID: 001-58186
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 1997
DOCNAME: CASE OF ORLANDINI v. ITALY
IMPORTANCE: 4
CONCLUSION: Art. 6 inapplicable
JUDGES: C. Russo;N. Valticos;R. Pekkanen
TEXT: 7. Mr Rino Orlandini, a district council employee, lives in Rosignano Marittimo (Livorno).
8. On 18 July 1985 the District Council promoted the applicant with effect from 28 July 1980, but postponed the corresponding pecuniary advantages until 14 December 1985.
9. On 17 January 1987 Mr Orlandini applied to the Tuscany Regional Administrative Court (“the RAC”) seeking the backdating of his promotion as regards the pecuniary advantages also, payment of the difference in salary and annulment of the decision in issue.
10. On an unspecified date the applicant asked for the case to be set down for hearing.
11. In a judgment of 9 April 1993, the text of which was deposited with the registry on 11 August 1993, the RAC gave judgment against the applicant. It held that his claim was ill-founded, as throughout the period in question his work had consisted of the duties associated with the post he had held prior to being promoted.


ITEMID: 001-80354
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: ECKARDT v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Peer Lorenzen
TEXT: The applicant, Mr Dietrich Eckardt, is a German national who was born in 1947 and lives in Erfurt. When lodging his application, he was detained in Tonna. He was represented before the Court by Mr J. Rieger, a lawyer practising in Hamburg.
Following his criminal conviction the applicant was detained from 18 November 1999 until 8 February 2001 in the Suhl-Goldlauter prison. Between 18 November 1999 and 11 December 2000 he was remanded for 21 to 23 hours per day in a cell which measured some 10.5 square metres together with two further persons. The cell’s window could not be opened. From 11 December 2000 until 8 February 2001 he was detained in a different cell which measured some 13 square metres with two more persons, but could leave that cell for some hours every day. There was hardly any space to walk, as both cells were equipped with beds, a table, chairs, a wardrobe and a wash basin. The toilet was located within the cell and was merely separated from the room by a curtain. There was no ventilation and insufficient airing.
The applicant claimed to have lodged three motions with the SuhlGoldlauter prison to be transferred to a single cell. In reply, the prison staff explained to him that he did not have a right to be transferred.
On 22 August 2003 the applicant applied for legal aid so as to lodge before the Erfurt Regional Court an official liability action for payment of damages against the Land of Thuringia according to section 839 of the Civil Code (see ‘Relevant domestic law and practice’, below). He claimed that the conditions of his detention in the Suhl-Goldlauter prison, notably the lack of space and airing and the constant deprivation of privacy even when using the toilet, had been degrading and had disregarded human dignity and Articles 3 and 5 of the Convention. These circumstances had further led to health problems such as constant stress, eating and sleeping disorders, stomach troubles and strong headaches.
The applicant argued that it had not been possible for him to avert the damage incurred as prescribed by section 839 § 3 of the Civil Code while he was being detained in the Suhl-Goldlauter prison by applying for judicial review. Upon his complaints to the prison staff about his conditions of detention he had been informed that these were lawful, and he had not been instructed that he could lodge a motion for judicial review. He had not had sufficient means to mandate a lawyer while in prison.
On 19 February 2004 the Land of Thuringia requested the dismissal of the applicant’s motion to be granted legal aid. It submitted that the applicant’s detention together with two further persons in one cell had been lawful. Pursuant to section 18 § 2 of the Execution of Sentences Act, read in conjunction with section 201 no. 3 of the Execution of Sentences Act (see ’Relevant domestic law and practice’, below), a temporary placement of several persons in one cell was permitted if this was indispensable, as was the case at the time of the applicant’s detention. According to the defendant, the cells measured 15.2 square metres and 12.98 square metres respectively, and as their length was 4.72 metres the toilet was some two metres away from the dining table. The Land further contested that the applicant had been obliged to stay in the cell for 21 to 23 hours per day.
On 11 March 2004 the Gera Regional Court dismissed the applicant’s motion to be granted legal aid. It found that the applicant’s intended action for payment of damages had no sufficient prospects of success and appeared wanton. A possible damages claim was excluded pursuant to section 839 § 3 of the Civil Code. The applicant had failed to avert the alleged damage by lodging a motion for judicial review of his conditions of detention under section 109 of the Execution of Sentences Act (see ‘Relevant domestic law and practice’, below) while detained in the Suhl-Goldlauter prison, if necessary after having obtained legal advice.
On 13 April 2004 the applicant, meanwhile represented by counsel, lodged an appeal. He argued in particular that a motion for judicial review to the Regional Court under section 109 of the Execution of Sentences Act would have had no prospects of success. Prior to the decision of the Federal Constitutional Court of 27 February 2002 (no. 2 BvR 553/01, see ‘Relevant domestic law and practice’, below) the regional courts in Thuringia had dismissed all motions for judicial review concerning the refusal of prison authorities to transfer detainees to a single cell for lack of space in the Thuringia prisons. The applicant could not have averted the damage incurred, not least because the proceedings before the Regional Court would have taken several months during which he was being remanded in the impugned conditions of imprisonment.
On 24 May 2004 the Thuringia Court of Appeal dismissed the applicant’s appeal. It agreed with the Regional Court that the applicant had lost his damages claim in accordance with section 839 § 3 of the Civil Code as he had failed to avoid the alleged damage by lodging a motion for judicial review under section 109 of the Execution of Sentences Act.
The Court of Appeal found that there would be no causal link between the failure to lodge a motion for judicial review and the damage incurred where such a motion clearly had no prospects of success. It conceded that, at the relevant time, the regional courts had repeatedly dismissed motions for judicial review concerning the placement of several detainees in one cell. However, it was crucial how the applicant’s motion under section 109 of the Execution of Sentences Act should have been correctly decided, having regard to the particular circumstances of his case. In the Court of Appeal’s view, a motion for judicial review lodged by the applicant during his detention, assuming that the alleged particular conditions of detention proved to be true, would have had prospects of success. It had been lawful to place the applicant in a cell together with other detainees (section 201 no. 3 of the Execution of Sentences Act). However, the conditions of his detention in the cell suggested that there had been a violation of his personality rights. Therefore, it was possible that a prompt motion for judicial review, in accordance with the case-law of the Federal Constitutional Court, would have resulted in a finding that his conditions of detention disregarded human dignity which in turn would have led to a change in these conditions.
On 17 June 2004 the applicant lodged a complaint with the Federal Constitutional Court. He complained in particular that the Court of Appeal had conceded, on the one hand, that at the time of his detention the regional courts had repeatedly dismissed motions for judicial review lodged against similar prison conditions. On the other hand, the Court of Appeal had found that the regional courts might have granted a motion lodged by the applicant for judicial review and therefore considered his claim for damages to be excluded. This was arbitrary. It was uncontested that there had not been any space in the Suhl-Goldlauter prison to transfer the applicant to a single cell. Therefore, a motion for judicial review would not have had any prospects of success. Moreover, the applicant claimed that he had been treated less favourably than other prisoners who had been detained in comparable conditions. He argued that the civil courts in other Länder had granted actions for payment of damages without the plaintiffs having previously brought a motion for judicial review of their imprisonment conditions while in detention.
On 7 July 2004 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint as it had no prospects of success. The Court of Appeal’s impugned decision was not based on a violation of the applicant’s rights guaranteed by the Basic Law.
Pursuant to section 839 § 1 of the Civil Code, taken in conjunction with Article 34 of the Basic Law, an individual has the right to be compensated by the State for any damage arising from a breach of official duty committed by an official. However, the obligation to afford redress shall not arise where the injured party has wilfully or negligently omitted to avoid the damage by means of a legal remedy (section 839 § 3 of the Civil Code).
Section 109 § 1 of the Execution of Sentences Act (Strafvollzugsgesetz) provides that a motion for judicial review may be lodged (with the Regional Court, see section 110 of the said Act) against measures concerning the conditions of detention.
Pursuant to section 18 § 2 of the Execution of Sentences Act a detainee may only temporarily and for compelling reasons be placed in the same cell with other prisoners during the rest period. Section 201 of the Execution of Sentences Act contains transitional arrangements for prisons the construction of which was started before 1977. In particular, according to section 201 no. 3 of the Execution of Sentences Act and in derogation of section 18, the placement of several prisoners in one cell during the rest period is permitted if this is necessary in view of the limited space available in prison.
Pursuant to section 78 § 1 of the Code of Civil Procedure representation by counsel is compulsory for the parties in civil proceedings before the Regional Court, the Court of Appeal and the Federal Court of Justice.
The conditions for legal aid are laid down in section 114 of the Code of Civil Procedure. According to that section, a party who in view of his or her personal and economic situation cannot afford the costs for conducting the proceedings is granted legal aid upon application if the intended legal action offers sufficient prospects of success and does not appear wanton (mutwillig). A party who has been granted legal aid is officially appointed a lawyer of his or her choice who is ready to represent him or her if representation by counsel is compulsory (section 121 § 1 of the Code of Civil Procedure). It is the court having jurisdiction to deal with the intended action itself which is called to decide on motions for legal aid (section 127 § 1 of the Code of Civil Procedure). An appeal lies against a decision refusing legal aid (section 127 § 2 of the Code of Civil Procedure).
In its decision of 27 February 2002 (no. 2 BvR 553/01), the Federal Constitutional Court quashed the decisions of the criminal courts reviewing a prisoner’s conditions of detention. The petitioner had been placed for four days during twenty-three hours per day together with another person in a cell measuring 7.6 square metres. The toilet was located in the cell without any partition from the remainder of the room. The court found, in particular, that it was irrelevant that, possibly, the petitioner had not complained about his temporary placement in the said cell while in detention, as the authorities had to respect his human dignity irrespective of whether or not he complained about his treatment.


ITEMID: 001-57789
LANGUAGEISOCODE: ENG
RESPONDENT: IRL
BRANCH: CHAMBER
DATE: 1992
DOCNAME: CASE OF OPEN DOOR AND DUBLIN WELL WOMAN v. IRELAND
IMPORTANCE: 2
CONCLUSION: Preliminary objections dismissed (Article 34 - Victim);Preliminary objection dismissed (Article 35-1 - Six month period);Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom to impart information);Pecuniary damage - award
JUDGES: C. Russo;John Freeland;N. Valticos;R. Pekkanen
TEXT: 9. The applicants in this case are (a) Open Door Counselling Ltd (hereinafter referred to as Open Door), a company incorporated under Irish law, which was engaged, inter alia, in counselling pregnant women in Dublin and in other parts of Ireland; and (b) Dublin Well Woman Centre Ltd (hereinafter referred to as Dublin Well Woman), a company also incorporated under Irish law which provided similar services at two clinics in Dublin; (c) Bonnie Maher and Ann Downes, who worked as trained counsellors for Dublin Well Woman; (d) Mrs X, born in 1950 and Ms Maeve Geraghty, born in 1970, who join in the Dublin Well Woman application as women of child-bearing age. The applicants complained of an injunction imposed by the Irish courts on Open Door and Dublin Well Woman to restrain them from providing certain information to pregnant women concerning abortion facilities outside the jurisdiction of Ireland by way of non-directive counselling (see paragraphs 13 and 20 below).
Open Door and Dublin Well Woman are both non-profit- making organisations. Open Door ceased to operate in 1988 (see paragraph 21 below). Dublin Well Woman was established in 1977 and provides a broad range of services relating to counselling and marriage, family planning, procreation and health matters. The services offered by Dublin Well Woman relate to every aspect of women’s health, ranging from smear tests to breast examinations, infertility, artificial insemination and the counselling of pregnant women.
10. In 1983, at the time of the referendum leading to the Eighth Amendment of the Constitution (see paragraph 28 below), Dublin Well Woman issued a pamphlet stating inter alia that legal advice on the implications of the wording of the provision had been obtained and that "with this wording anybody could seek a court injunction to prevent us offering" the non-directive counselling service. The pamphlet also warned that "it would also be possible for an individual to seek a court injunction to prevent a woman travelling abroad if they believe she intends to have an abortion".
11. The applicant companies were the defendants in proceedings before the High Court which were commenced on 28 June 1985 as a private action brought by the Society for the Protection of Unborn Children (Ireland) Ltd (hereinafter referred to as S.P.U.C.), which was converted into a relator action brought at the suit of the Attorney General by order of the High Court of 24 September 1986 (the Attorney General at the relation of the Society for the Protection of Unborn Children (Ireland) Ltd v. Open Door Counselling Ltd and Dublin Well Woman Centre Ltd [1988] Irish Reports, pp. 593-627).
12. S.P.U.C. sought a declaration that the activities of the applicant companies in counselling pregnant women within the jurisdiction of the court to travel abroad to obtain an abortion were unlawful having regard to Article 40.3.3o of the Constitution which protects the right to life of the unborn (see paragraph 28 below) and an order restraining the defendants from such counselling or assistance.
13. No evidence was adduced at the hearing of the action which proceeded on the basis of certain agreed facts. The facts as agreed at that time by Dublin Well Woman may be summarised as follows:
(a) It counsels in a non-directive manner pregnant women resident in Ireland;
(b) Abortion or termination of pregnancy may be one of the options discussed within the said counselling;
(c) If a pregnant woman wants to consider the abortion option further, arrangements will be made by the applicant to refer her to a medical clinic in Great Britain;
(d) In certain circumstances, the applicant may arrange for the travel of such pregnant women;
(e) The applicant will inspect the medical clinic in Great Britain to ensure that it operates at the highest standards;
(f) At those medical clinics abortions have been performed on pregnant women who have been previously counselled by the applicant;
(g) Pregnant women resident in Ireland have been referred to medical clinics in Great Britain where abortions have been performed for many years including 1984.
The facts agreed by Open Door were the same as above with the exception of point (d).
14. The meaning of the concept of non-directive counselling was described in the following terms by Mr Justice Finlay CJ in the judgment of the Supreme Court in the case (judgment of 16 March 1988, [1988] Irish Reports 618 at p. 621):
"It was submitted on behalf of each of the Defendants that the meaning of non-directive counselling in these agreed sets of facts was that it was counselling which neither included advice nor was judgmental but that it was a service essentially directed to eliciting from the client her own appreciation of her problem and her own considered choice for its solution. This interpretation of the phrase ‘non-directive counselling’ in the context of the activities of the Defendants was not disputed on behalf of the Respondent. It follows from this, of course, that non- directive counselling to pregnant women would never involve the actual advising of an abortion as the preferred option but neither, of course, could it permit the giving of advice for any reason to the pregnant women receiving such counselling against choosing to have an abortion."
15. On 19 December 1986 Mr Justice Hamilton, President of the High Court, found that the activities of Open Door and Dublin Well Woman in counselling pregnant women within the jurisdiction of the court to travel abroad to obtain an abortion or to obtain further advice on abortion within a foreign jurisdiction were unlawful having regard to the provisions of Article 40.3.3o of the Constitution of Ireland.
He confirmed that Irish criminal law made it an offence to procure or attempt to procure an abortion, to administer an abortion or to assist in an abortion by supplying any noxious thing or instrument (sections 58 and 59 of the Offences against the Person Act 1861 - see paragraph 29 below). Furthermore, Irish constitutional law also protected the right to life of the unborn from the moment of conception onwards.
An injunction was accordingly granted "... that the Defendants [Open Door and Dublin Well Woman] and each of them, their servants or agents, be perpetually restrained from counselling or assisting pregnant women within the jurisdiction of this Court to obtain further advice on abortion or to obtain an abortion". The High Court made no order relating to the costs of the proceedings, leaving each side to bear its own legal costs.
16. Open Door and Dublin Well Woman appealed against this decision to the Supreme Court which in a unanimous judgment delivered on 16 March 1988 by Mr Justice Finlay CJ rejected the appeal.
The Supreme Court noted that the appellants did not consider it essential to the service which they provided for pregnant women in Ireland that they should take any part in arranging the travel of women who wished to go abroad for the purpose of having an abortion or that they arranged bookings in clinics for such women. However, they did consider it essential to inform women who wished to have an abortion outside the jurisdiction of the court of the name, address, telephone number and method of communication with a specified clinic which they had examined and were satisfied was one which maintained a high standard.
17. On the question of whether the above activity should be restrained as being contrary to the Constitution, Mr Justice Finlay CJ stated:
"... the essential issues in this case do not in any way depend upon the Plaintiff establishing that the Defendants were advising or encouraging the procuring of abortions. The essential issue in this case, having regard to the nature of the guarantees contained in Article 40, s.3, sub-s.3 of the Constitution, is the issue as to whether the Defendants’ admitted activities were assisting pregnant women within the jurisdiction to travel outside that jurisdiction in order to have an abortion. To put the matter in another way, the issue and the question of fact to be determined is: were they thus assisting in the destruction of the life of the unborn?
I am satisfied beyond doubt that having regard to the admitted facts the Defendants were assisting in the ultimate destruction of the life of the unborn by abortion in that they were helping the pregnant woman who had decided upon that option to get in touch with a clinic in Great Britain which would provide the service of abortion. It seems to me an inescapable conclusion that if a woman was anxious to obtain an abortion and if she was able by availing of the counselling services of one or other of the Defendants to obtain the precise location, address and telephone number of, and method of communication with, a clinic in Great Britain which provided that service, put in plain language, that was knowingly helping her to attain her objective. I am, therefore, satisfied that the finding made by the learned trial Judge that the Defendants were assisting pregnant women to travel abroad to obtain further advice on abortion and to secure an abortion is well supported on the evidence ..."
The Court further noted that the phrase in Article 40.3.3o "with due regard to the equal right to life of the mother" did not arise for interpretation in the case since the applicants were not claiming that the service they were providing for pregnant women was "in any way confined to or especially directed towards the due regard to the equal right to life of the mother ...".
18. Open Door and Dublin Well Woman had submitted that if they did not provide this counselling service it was likely that pregnant women would succeed nevertheless in obtaining an abortion in circumstances less advantageous to their health. The Court rejected this argument in the following terms:
"Even if it could be established, however, it would not be a valid reason why the Court should not restrain the activities in which the defendants were engaged.
The function of the courts, which is not dependent on the existence of legislation, when their jurisdiction to defend and vindicate a constitutionally guaranteed right has been invoked, must be confined to the issues and to the parties before them.
If the Oireachtas enacts legislation to defend and vindicate a constitutionally guaranteed right it may well do so in wider terms than are necessary for the resolution of any individual case. The courts cannot take that wide approach. They are confined to dealing with the parties and issues before them. I am satisfied, therefore, that it is no answer to the making of an order restraining these defendants’ activities that there may be other persons or the activities of other groups or bodies which will provide the same result as that assisted by these defendants’ activities."
19. As to whether there was a constitutional right to information about the availability of abortion outside the State, the court stated as follows:
"The performing of an abortion on a pregnant woman terminates the unborn life which she is carrying. Within the terms of Article 40.3.3o it is a direct destruction of the constitutionally guaranteed right to life of that unborn child.
It must follow from this that there could not be an implied and unenumerated constitutional right to information about the availability of a service of abortion outside the State which, if availed of, would have the direct consequence of destroying the expressly guaranteed constitutional right to life of the unborn. As part of the submission on this issue it was further suggested that the right to receive and give information which, it was alleged, existed and was material to this case was, though not expressly granted, impliedly referred to or involved in the right of citizens to express freely their convictions and opinions provided by Article 40, s.6, sub-s.1 (i) of the Constitution, since, it was claimed, the right to express freely convictions and opinions may, under some circumstances, involve as an ancillary right the right to obtain information. I am satisfied that no right could constitutionally arise to obtain information the purpose of the obtaining of which was to defeat the constitutional right to life of the unborn child."
20. The court upheld the decision of the High Court to grant an injunction but varied the terms of the order as follows:
"... that the defendants and each of them, their servants or agents be perpetually restrained from assisting pregnant women within the jurisdiction to travel abroad to obtain abortions by referral to a clinic, by the making for them of travel arrangements, or by informing them of the identity and location of and the method of communication with a specified clinic or clinics or otherwise."
The costs of the Supreme Court appeal were awarded against the applicant companies on 3 May 1988.
21. Following the judgment of the Supreme Court, Open Door, having no assets, ceased its activities.
22. On 25 September 1989 S.P.U.C. applied to the High Court for a declaration that the dissemination in certain student publications of information concerning the identity and location of abortion clinics outside the jurisdiction was unlawful and for an injunction restraining its distribution. Their standing to apply to the courts for measures to protect the right to life of the unborn had previously been recognised by the Supreme Court following a similar action in the case of Society for the Protection of Unborn Children (Ireland) Ltd v. Coogan and Others ([1989] Irish Reports, pp. 734-751).
By a judgment of 11 October 1989 the High Court decided to refer certain questions to the European Court of Justice for a preliminary ruling under Article 177 of the EEC Treaty concerning, inter alia, the question whether the right to information concerning abortion services outside Ireland was protected by Community law.
23. An appeal was brought against this decision and, on 19 December 1989, the Supreme Court granted an interlocutory injunction restraining the students from "publishing or distributing or assisting in the printing, publishing or distribution of any publication produced under their aegis providing information to persons (including pregnant women) of the identity and location of and the method of communication with a specified clinic or clinics where abortions are performed" (Society for the Protection of Unborn Children (Ireland) Ltd v. Stephen Grogan and Others, [1989] Irish Reports, pp. 753-771).
Mr Justice Finlay CJ (with whom Mr Justice Walsh, Mr Justice Griffin and Mr Justice Hederman concurred) considered that the reasoning of the court in the case brought against the applicant companies applied to the activities of the students:
"I reject as unsound the contention that the activity involved in this case of publishing in the students’ manuals the name, address and telephone number, when telephoned from this State, of abortion clinics in the United Kingdom, and distributing such manuals in Ireland, can be distinguished from the activity condemned by this Court in [the Open Door Counselling case] on the grounds that the facts of that case were that the information was conveyed during periods of one to one non-directive counselling. It is clearly the fact that such information is conveyed to pregnant women, and not the method of communication which creates the unconstitutional illegality, and the judgment of this Court in the Open Door Counselling case is not open to any other interpretation."
Mr Justice McCarthy also considered that an injunction should be issued and commented as follows:
"In the light of the availability of such information from a variety of sources, such as imported magazines, etc., I am far from satisfied that the granting of an injunction to restrain these defendants from publishing the material impugned would save the life of a single unborn child, but I am more than satisfied that if the courts fail to enforce, and enforce forthwith, that guarantee as construed in A.G. (S.P.U.C.) v. Open Door Counselling Ltd ([1988] Irish Reports 593), then the rule of law will be set at nought."
24. In a judgment of 4 October 1991 on the questions referred under Article 177 of the EEC Treaty, following the Supreme Court’s judgment, the Court of Justice of the European Communities ruled that the medical termination of pregnancy, performed in accordance with the law of the State in which it is carried out, constitutes a service within the meaning of Article 60 of the Treaty. However it found that the link between the activity of the student associations and medical terminations of pregnancy carried out in clinics in another member State was too tenuous for the prohibition on the distribution of information to be capable of being regarded as a restriction on the freedom to supply services within the meaning of Article 59 of the Treaty. The Court did not examine whether the prohibition was in breach of Article 10 (art. 10) of the Convention. In the light of its conclusions concerning the restriction on services it considered that it had no jurisdiction with regard to national legislation "lying outside the scope of Community law". Accordingly, the restrictions on the publication of information by student associations were not considered to be contrary to Community law (see paragraphs 22-23 above, the Society for the Protection of Unborn Children (Ireland) Ltd v. Stephen Grogan and Others [1991] European Court Reports I, pp. 4733-4742).
25. The interpretation to be given to Article 40.3.3o of the Constitution also arose before the Supreme Court in the case of The Attorney General v. X and Others which concerned an application to the courts by the Attorney General for an injunction to prevent a 14-year-old girl who was pregnant from leaving the jurisdiction to have an abortion abroad. The girl alleged that she had been raped and had expressed the desire to commit suicide. The Supreme Court, in its judgment of 5 March 1992, found that termination of pregnancy was permissible under Article 40.3.3o where it was established as a matter of probability that there was a real and substantial risk to the life of the mother if such termination was not effected. Finding that this test was satisfied on the facts of the case the Supreme Court discharged the injunction which had been granted by the High Court at first instance.
A majority of three judges of the Supreme Court (Finlay CJ, Hederman and Egan JJ.) expressed the view that Article 40.3.3o empowered the courts in proper cases to restrain by injunction a pregnant woman from leaving the jurisdiction to have an abortion so that the right to life of the unborn might be defended and vindicated.
During the oral hearing before the European Court of Human Rights, the Government made the following statement in the light of the Supreme Court’s judgment in this case:
"... persons who are deemed to be entitled under Irish law to avail themselves of termination of pregnancy in these circumstances must be regarded as being entitled to have appropriate access to information in relation to the facilities for such operations, either in Ireland or abroad."
26. The applicants presented evidence to the Court that there had been no significant drop in the number of Irish women having abortions in Great Britain since the granting of the injunction, that number being well over 3,500 women per year. They also submitted an opinion from an expert in public health (Dr J.R. Ashton) which concludes that there are five possible adverse implications for the health of Irish women arising from the injunction in the present case:
1. An increase in the birth of unwanted and rejected children;
2. An increase in illegal and unsafe abortions;
3. A lack of adequate preparation of Irish women obtaining abortions;
4. Increases in delay in obtaining abortions with ensuing increased complication rates;
5. Poor aftercare with a failure to deal adequately with medical complications and a failure to provide adequate contraceptive advice.
In their written comments to the Court, S.P.U.C. claimed that the number of abortions obtained by Irish women in England, which had been rising rapidly prior to the enactment of Article 40.3.3o, had increased at a much reduced pace. They further submitted that the number of births to married women had increased at a "very substantial rate".
27. The applicants claimed that the impugned information was available in British newspapers and magazines which were imported into Ireland as well as in the yellow pages of the London telephone directory which could be purchased from the Irish telephone service. It was also available in publications such as the British Medical Journal which was obtainable in Ireland.
While not challenging the accuracy of the above information the Government observed that no newspaper or magazine had been produced in evidence to the Court.
28. Article 40.3.3o of the Irish Constitution (the Eighth Amendment), which came into force in 1983 following a referendum, reads:
"The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right."
This provision has been interpreted by the Supreme Court in the present case, in the Society for the Protection of Unborn Children (Ireland) Ltd v. Grogan and Others ([1989] Irish Reports, p. 753) and in The Attorney General v. X and Others (see paragraphs 22-25 above).
29. The statutory prohibition of abortion is contained in sections 58 and 59 of the Offences Against the Person Act 1861. Section 58 provides that:
"Every woman, being with child, who, with intent to procure her own miscarriage, shall unlawfully administer to herself any poison or other noxious thing or shall unlawfully use any instrument or other means whatsoever with the like intent, and whosoever, with intent to procure the miscarriage of any woman, whether she be or not be with child, shall unlawfully administer to her or cause to betaken by her any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, shall be guilty of a felony, and being convicted thereof shall be liable, [to imprisonment for life] ..."
Section 59 states that:
"Whoever shall unlawfully supply or procure any poison or other noxious thing, or any instrument or thing whatsoever, knowing that the same is intended to be unlawfully used or employed with intent to procure the miscarriage of any woman, whether she be or be not with child, shall be guilty of a misdemeanour, and being convicted thereof, ..."
30. Section 16 of the Censorship of Publications Act 1929 as amended by section 12 of the Health (Family Planning) Act 1979 provides that:
"It shall not be lawful for any person, otherwise than under and in accordance with a permit in writing granted to him under this section
(a) to print or publish or cause or procure to be printed or published, or
(b) to sell or expose, offer or keep for sale or
(c) to distribute, offer or keep for distribution,
any book or periodical publication (whether appearing on the register of prohibited publications or not) which advocates or which might reasonably be supposed to advocate the procurement of abortion or miscarriage or any method, treatment or appliance to be used for the purpose of such procurement."
31. Section 58 of the Civil Liability Act 1961 provides that "the law relating to wrongs shall apply to an unborn child for his protection in like manner as if the child were born, provided the child is subsequently born alive".
32. Section 10 of the Health (Family Planning) Act 1979 re-affirms the statutory prohibition of abortion and states as follows:
"Nothing in this Act shall be construed as authorising -
(a) the procuring of abortion,
(b) the doing of any other thing the doing of which is prohibited by section 58 or 59 of the Offences Against the Person Act, 1861 (which sections prohibit the administering of drugs or the use of any instruments to procure abortion) or,
(c) the sale, importation into the State, manufacture, advertising or display of abortifacients."
33. Apart from the present case and subsequent developments (see paragraphs 11-25 above), reference has been made to the right to life of the unborn in various decisions of the Supreme Court (see, for example, McGee v. Attorney General [1974] Irish Reports, p. 264, G. v. An Bord Uchtala [1980] Irish Reports, p. 32, Norris v. Attorney General [1984] Irish Reports, p. 36).
34. In the case of G. v. An Bord Uchtala (loc. cit.) Mr Justice Walsh stated as follows:
"[A child] has the right to life itself and the right to be guarded against all threats directed to its existence, whether before or after birth ... The right to life necessarily implies the right to be born, the right to preserve and defend and to have preserved and defended that life ..."
35. The Supreme Court has also stated that the courts are the custodians of the fundamental rights set out in the Constitution and that their powers in this regard are as ample as the defence of the Constitution requires (The State (Quinn) v. Ryan [1965] Irish Reports 70). Moreover, an infringement of a constitutional right by an individual may be actionable in damages as a constitutional tort (Meskell v. C.I.E. [1973] Irish Reports, p. 121).
In his judgment in The People v. Shaw ([1982] Irish Reports, p. 1), Mr Justice Kenny observed:
"When the People enacted the Constitution of 1937, they provided (Article 40,s.3) that the State guaranteed in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen and that the State should, in particular, by its laws protect as best it might from unjust attack and in the case of injustice done, vindicate the life, person, good name and property rights of every citizen. I draw attention to the use of the words ‘the State’. The obligation to implement this guarantee is imposed not on the Oireachtas only, but on each branch of the State which exercises the powers of legislating, executing and giving judgment on those laws: Article 6. The word ‘laws’ in Article 40,s.3 is not confined to laws which have been enacted by the Oireachtas, but comprehends the laws made by judges and by ministers of State when they make statutory instruments or regulations."
VIOLATED_ARTICLES: 10
VIOLATED_PARAGRAPHS: 10-1


ITEMID: 001-101033
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: LESNÍ SPOLEČNOST PŘIMDA, A.S. v. THE CZECH REPUBLIC
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste
TEXT: The applicant, Lesní společnost Přimda, a.s., is a joint-stock company with its seat in Přimda. It was represented before the Court by Mrs R. Tunklová, practising in Plzeň. The Czech Government (“the Government”) were represented by their Agent, Mr. V.A. Schorm, from the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
By Resolution no. 323 of 29 April 1992 of the Government of the Czech Republic and the decision of the Ministry of Administration of National Property and Privatisation (ministerstvo pro správu národního majetku a jeho privatizaci) of 30 April 1992, privatisation project no. 3132 of the State enterprise Západočeské státní lesy Plzeň was approved. On the basis of that project, the applicant company was founded on 1 September 1992. In accordance with the privatisation project approved by the Government, the property transferred to it included the building in issue.
On 3 June 1996, further to the applicant company's notification (oznámení), its title to the building was recorded in the Land Register.
On 8 December 1995 the Přimda Municipality (Město Přimda) brought a civil action against the applicant company, seeking to determine that it was the owner of the building. It referred to the Act on Transfer of Certain Property of the Czech Republic to Municipalities (Act no. 172/1991) which provided that certain property was to be ipso jure transferred to municipalities with effect from the date on which the law came into force, that was, on 24 May 1991.
Judgments of the Tachov District Court (okresní soud) of 14 June 1996 and of 18 November 1997 in favour of the Municipality were quashed by the Plzeň Regional Court (krajský soud) on 19 May 1997 and on 19 January 1999 respectively. The Regional Court held that the first-instance court had failed to establish the facts of the case properly, and instructed it to supplement the evidence.
On 19 December 2000 the District Court again allowed the Municipality's action, holding that the conditions set forth in section 2(1)(c) of Act no. 172/1991 were met, specifically that the plaintiff had been the owner of the property in issue as of 31 December 1949 and that the property was in State ownership on the date on which the Act entered into force. Responding to one of the applicant company's objections and with reference to the conclusions of an expert opinion drawn up on the court's request of 1 November 1999, it concluded that the building owned by the Municipality as of 31 December 1949 was the one in issue. Notwithstanding the reconstruction works carried out by the applicant company's legal predecessor, the building had not lost its character, that is, it had not ceased to exist and a new building had not been created.
In an appeal of 19 February 2001 the applicant company argued that the reasoning of the District Court did not comply with the statutory requirements. It further challenged the court's interpretation of section 2(1)(c) of Act no. 172/1991 and its finding that a new building had not been created.
In a judgment of 21 August 2002 the Regional Court upheld the first-instance judgment finding that its reasoning had been in compliance with the Code of Civil Procedure since it referred, inter alia, to the expert opinion and it had therefore been possible to ascertain the evidence on which the court had based its decision. It further rejected the applicant company's interpretation of the provision cited above and accepted the interpretation given by the District Court. Lastly, it upheld the conclusion that the original building had never ceased to exist. The Regional Court's judgment became final on 30 September 2002.
On 21 March 2003 the Supreme Court (Nejvyšší soud), holding that the courts had decided in compliance with the established case-law and that therefore no issue of crucial legal importance arose, rejected an appeal on points of law (dovolání) by the applicant company as inadmissible.
On 15 September 2004 a constitutional appeal (ústavní stížnost) by the applicant company alleging a violation of the right to a fair hearing and its property rights was dismissed as manifestly ill-founded. The Constitutional Court (Ústavní soud) found that the applicant company had merely disputed the ordinary courts' findings of fact and law and had presented the same legal opinion again. However, its status as a party to the proceedings had been respected and the courts had examined enough evidence and reasoned their decisions. As to the alleged violation of property rights, the court held that ownership that was merely the subject of legal proceedings did not enjoy constitutional protection. The decision was served on the applicant's legal representative on 27 September 2004.
On 22 August 2005, pursuant to Act no. 58/1969 on State Liability Act, the applicant company brought an action in the Prague 1 District Court (obvodní soud) against the Ministry of Finance (ministerstvo financí). The damages sought consisted of (i) the price of the building in issue which had been transferred to it under the privatisation project and in respect of which it had later been established that it had been the property of the Přimda Municipality, (ii) legal costs incurred in the proceedings for a determination of ownership, and (iii) costs incurred for the upkeep of the property.
On 31 January 2007 the District Court excluded the first two claims for a separate hearing and transferred the case to the Prague High Court (Vrchní soud) for a decision which level of courts had jurisdiction to hear the case. In a judgment of the same day, the District Court dismissed the applicant company's third claim.
On 11 June 2007 the High Court remitted the case to the District Court. It appears that the proceedings are still pending before that court.
On 17 October 2007 the District Court's judgment concerning the third claim was upheld by the Prague Municipal Court (městský soud). On 21 January 2008 the applicant company lodged an appeal on points of law (dovolání) in which it submitted, inter alia, that should it not have been possible to infer the State's liability under Act no. 58/1969 or Act no. 82/1998, its liability should have been given under general provisions of civil law. The proceedings appear to be pending before the Supreme Court.
At the material time, the relevant provisions of Act no. 172/1991 as amended read as follows:
“(1) As of the date when this law comes into force, the following property shall be transferred to municipalities: ...
(c) Buildings with land constituting a single functional unit with the building, ...
which were owned by municipalities as of 31 December 1949 and provided that they are owned by the Czech Republic ...”
“Within one year after acquiring the ownership of real estate in accordance with this law, municipalities shall be obliged to lodge an application with the Geodetic Centre to record [the title to] such real estate in the Register of Real Property.”
At the material time, the relevant provision of Act no. 92/1991, on the conditions of transfer of State property to other persons (the Privatisation Act) read as follows:
“(3) Privatisation proceedings are not subject to general rules on administrative proceedings and a privatisation decision is not subject to judicial review.”
Act no. 58/1969 on State liability for damage caused by a State body's decision or its incorrect administrative procedure. As of 5 May 1998 it has been replaced by Act no. 82/1998.
Resolution of the Constitutional Court no. III. ÚS 380/97
“ ... a decision (of the State) on privatisation, under the Act on the conditions of transfer of State property to other persons (Law no. 92/1991, as amended) is a decision of the State, however not in its capacity as the holder of public power, but in its capacity as the owner of the privatised property; it follows ... that any disposition of (decision on) the property in the framework of the above-mentioned law is an expression and a consequence of the owner's will and that the liability of any authority empowered to carry out privatisation falls outside the scope of general liability under domestic legislation.”
Resolution of the Constitutional Court no. III. ÚS 93/99
“The activity of privatisation commissions ... has the character of decision-making by the owner of property on the manner in which the property will be treated, and the State does not act as a superior subject. ... A prerequisite for application of Law no. 58/1969 is that the State, through its bodies, must act as the holder of public power and exercise that power. If [in the context of the activity of privatisation commissions] the State acts as the owner of the property and disposes of its property in the framework of civil-law relation, it is clear that the State's liability cannot be based on Law no. 58/1969.”
Resolution of the Constitutional Court no. III. ÚS 1734/07
“In the instant case the ordinary courts ... referred to the established case-law of the Constitutional Court and the Supreme Court and held that a decision of the State in the context of privatisation is one of the owner, not the holder of public power. ... On the other hand they did not rule out a State's mistake from the point of view of statutory provisions in making a decision. They merely ruled out that such mistakes would be covered by special laws on the State's liability.”


ITEMID: 001-95506
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: ŠUBRT v. THE CZECH REPUBLIC
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: The applicant, Mr Pavel Šubrt, is a Czech national who was born in 1956 and lives in Prostějov. The Czech Government (“the Government”) were represented by their Agent, Mr V.A. Schorm, from the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant owns an apartment house in Prostějov.
On 20 July 1994 the Prostějov District Court (okresní soud) granted the applicant’s action of 13 April 1994 by which he had requested that the tenancy of Mr and Ms K., who occupied one of the flats in the house subject to the rent-control scheme, be terminated. The court held that the tenancy would terminate within three months of the coming into force of the judgment. It ordered the defendants to vacate the flat within fifteen days of being provided with an alternative flat.
In a judgment of 6 December 1995 the Brno Regional Court (krajský soud) modified the judgment specifying that the alternative flat had to be equivalent to the apartment which they were occupying. The judgment became final on 5 March 1996.
On 9 June 1997 Mr K. died.
On 14 April 1998 the District Court, upon the applicant’s request for enforcement of 2 March 1998, ordered execution of the judgment of 20 July 1994 but held at the same time that the alternative flat which the applicant offered was not equivalent since even if it was of a higher category its total surface was 41% smaller than Ms K.’s existing flat having one room less, was situated on a higher floor and the rent was by CZK 710 (EUR 27.56) higher.
On 13 April 1999 the District Court rejected the applicant’s fresh request for enforcement of 3 December 1998, finding that the alternative flat offered by him could not be considered as an equivalent apartment because the rent was by CZK 2,896 (EUR 112) higher than that which Ms K. was currently paying for the apartment which was subject to the rent-control scheme. Her financial situation would drastically worsen given that her monthly pension amounted to CZK 6,842 (EUR 266). On 24 October 2000 the Regional Court rejected the applicant’s appeal as being introduced outside the statutory time-limit and upheld the District Court’s decision.
On 20 December 2000 the applicant filed a constitutional appeal (ústavní stížnost) and an appeal on points of law (dovolání).
On 26 September 2002 the Supreme Court (Nejvyšší soud) quashed the decision of the Regional Court and remitted the case to it.
On 8 January 2003 the Constitutional Court (Ústavní soud) dismissed the applicant’s appeal given that the case was pending before the Regional Court.
On 12 February 2003 the applicant presented to the District Court his complementary submissions and arguments requesting the court to alter the original condition and to declare that the eviction of Ms K. should be conditional only on the provision of a shelter (přístřeší).
On 30 May 2003 the Regional Court dismissed the applicant’s appeal against the decision of the District Court of 13 April 1999. On 25 March 2004 the Supreme Court rejected the applicant’s appeal on points of law.
In a ruling (nález) of 23 September 2004 the Constitutional Court, following the applicant’s new constitutional appeal, quashed the Regional Court’s decision of 30 May 2003 and found a violation of the applicant’s right to judicial protection under Article 36 § 1 of the Charter of Fundamental Rights and Freedoms (Listina základních práv a svobod). It held that the situation on the flats market at the relevant time made it impossible for the applicant to find an equivalent flat subject to the rent-control scheme. Referring to its ruling no. III. ÚS 114/94 of 16 February 1995, the court held that the only duty incumbent on the applicant had been to deploy all his efforts, within the reasonable limits, in order to provide an alternative flat, which, under local conditions and all terms stated in the law, would meet as much as possible the standards of the vacated flat. Otherwise the right of the landlord to terminate the tenancy would become impossible. The State could not transfer its duty of social care onto landlords; owners of flats subject to the rent-control scheme were entitled to obtain the enforcement of an order to vacate under the same conditions as those owning uncontrolled flats. The court also held that a rent only had to be usual for the given place and time.
On 28 December 2004 the Regional Court scheduled a hearing for 9 February 2005, inviting the applicant to submit, not later than at the hearing, documentary evidence that an alternative housing was assured to Ms K. It also requested the Prostějov Housing Association (domovní správa) and a number of estate agents in that particular area to provide their opinions on the precognitions for the allocation of flats and on the then current housing situation on the market.
On 31 January 2005 the applicant filed a claim for damages, under the State Liability Act then in force (Act no. 82/1998), to compensate material damage caused by illegal decisions of lower courts and lengthy execution proceedings. On 8 September 2005 the Ministry of Justice rejected the applicant’s claim for damages. In a letter of 23 September 2005, the applicant informed the Ministry of his intention to initiate proceedings before domestic courts. However, there is nothing to show that he did actually turn to a court.
In the mean-time, on 9 February 2005, the Regional Court had upheld the District Court’s decision of 13 April 1999 on the grounds that the applicant’s request for assignment of a municipal flat had been withdrawn from the register. It appears that the dismissal of the request resulted from Ms K’s refusal to accept the flat offered by the applicant.
On 26 January 2006 the Supreme Court rejected the applicant’s appeal on points of law against the Regional Court’s decision of 9 February 2005 as having been filed outside the statutory time-limit.
On 4 May 2006 the applicant filed a constitutional appeal alleging a violation of his right to judicial protection guaranteed by Article 36 § 1 of the Charter, but the Constitutional Court rejected his appeal as manifestly ill-founded on 23 May 2006.
On 22 August 2006 the constitutional jurisdiction rejected the applicant’s appeal against the Supreme Court’s decision of 26 January 2006 and the decision of the Regional Court of 9 February 2005.
On 18 July 2007 the District Court terminated the enforcement proceedings, Ms K. having died on 9 June 2007.
On 21 January 2008 the court evaluated her property to CZK 665,819 (EUR 25,841) and decided that the inheritance of CZK 643,289 (EUR 24,967) would pass on the State. The applicant was paid CZK 4,745 (EUR 184) to compensate Ms K.’s outstanding rent from 1 May to 9 June 2007.
On 8 February 2002 the applicant brought an action for unjustified enrichment with the District Court against Ms K. seeking payment of CZK 46,586 (EUR 1,808) which, according to him, corresponded to compensation for the use of the flat from February 2000 to January 2002.
In a judgment of 2 October 2003 the District Court dismissed his action, but the Regional Court quashed this judgment on 27 May 2005 and sent the case back to the District Court.
On 21 February 2006 the latter ordered Ms K. to pay CZK 46,586 plus 6,5% interest to the applicant while rejecting his claim to order Ms K. to vacate the flat under the provision by the applicant of a shelter. It admitted that Ms K. had failed to meet some of her duties as a tenant, but it held that the alteration suggested by the applicant would be immoral with respect to her age and health.
Law no. 82/1998 on State liability for damage caused in the exercise of public authority by an irregularity in a decision or the conduct of proceedings.
Section 13(1) as in force until 26 April 2006 provided that the State was liable for damage caused by an irregularity in the conduct of proceedings, including non-compliance with the obligation to perform an act or give a decision within the statutory time-limit. Under section 13(2) a person who had suffered loss on account of such an irregularity was entitled to damages.
On 27 April 2006 Act no. 160/2006 entered into force amending, inter alia, section 13(1) which newly provides that the State is liable for damage caused by an irregularity in the conduct of proceedings, including non-compliance with the obligation to perform an act or give a decision within the statutory time-limit. If the law does not fix a time-limit for these purposes, it is considered that a violation of the duty to perform the act or give the decision within a reasonable time-limit is also considered as an irregularity in the conduct of proceedings. When using the notion of “reasonable time”, the Act refers to Articles 5 and 6 of the Convention.
Act no. 160/2006 also introduced a new section 31a which provides for a reasonable satisfaction for moral prejudice caused by an irregularity in the conduct of proceedings including non-compliance with the obligation to perform an act or to adopt a decision within a reasonable time.
Section 32 provides, inter alia, that a claim for damages is subject to the three-year statutory bar after the date on which the victim got knowledge of the damage and the authority liable for it.


ITEMID: 001-90704
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF CSANICS v. HUNGARY
IMPORTANCE: 2
CONCLUSION: Remainder inadmissible;Violation of Art. 10;Non-pecuniary damage - award
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 5. The applicant was born in 1955 and lives in Érd.
6. The facts of the case, as submitted by the parties, may be summarised as follows.
7. The applicant is the chairman of the Trade Union of Value Transporters and Security Workers (Értékszállítási és Őrzésvédelmi Dolgozók Szakszervezete), which represents its members in numerous companies.
8. The applicant was an employee of the security company G. As the chairman of the trade union, he had constant arguments with the company. In 1998 his employment was terminated, which measure was declared illegal by the competent courts in 2000. The applicant alleged that, since then, company G. has not allowed him to enter its premises, even on official trade union business.
9. In March 1999 the applicant lodged a private motion (magánindítvány) with the Pest Central District Court against S.K., the managing director of company G., alleging that the latter had committed defamation by saying at a company meeting that the applicant “had taken under his wing criminals who had worked in the company”. In September 2003 the Budapest Regional Court, acting as a second-instance court, ultimately found S.K. guilty of defamation and fined him 150,000 Hungarian forints (HUF) (approximately 550 euros (EUR)).
10. In June 2002 the trade union became active in company D. In the second half of the same year, the trade union was informed of an intention to sell company D. and that one of the possible buyers was company G. The employees of company D. opposed the project and, in order to express their opinion, requested the trade union to organise a protest demonstration. This it did in front of the Parliament building. The applicant, as chairman of the trade union, gave interviews to several newspapers concerning the events.
11. On 14 December 2002, a daily newspaper Színes Mai Lap published an article which reported the planned sale of company D. and described the demonstration, analysing the background to the events. It interviewed the applicant, who made the following statements.
“... the other reason [for which we are holding a demonstration] is that 2,500 employees should not lose their livelihood and that such a company [i.e. company G.] which tramples constitutional and labour rights should not be the successor of company D. (...) Because of the inhuman conduct of the management [of company G.] [the employees] should not have to stay in a place where they were called ‛criminals’. We initiated court proceedings in some fifty cases because of that.”
12. On 17 January 2003 S.K. brought an action against the applicant before the Budaörs District Court, asking the court to establish that the applicant’s statements had infringed his good reputation, to order the applicant to refrain from such acts in the future and to arrange for a rectification to be published.
13. On 17 March 2004 the District Court, finding that it was impossible to identify S.K. directly from the impugned article, dismissed his action. The plaintiff appealed.
14. The Pest County Regional Court was of the view that the District Court’s decision had only been a partial decision determining the applicability of the law on defamation. On 8 July 2004, it amended the first-instance decision and established that the plaintiff could be identified from the article in question. Thus he, as an affected person, might lawfully claim the protection of his privacy rights.
15. In fresh proceedings the District Court found, on 24 November 2004, that the applicant had tarnished the plaintiff’s good reputation by the impugned statements and ordered him to publish a rectification and pay the plaintiff’s court fees in the amount of HUF 82,000 (approximately EUR 300). It established that the applicant’s assertions were statements of fact rather than value judgments. It also noted that, although it was true that numerous civil and labour proceedings had been instituted against company G., this fact could not justify defamatory statements.
16. The District Court refused the applicant’s request to obtain the decisions adopted in those other proceedings, or to hear witnesses who might be able to prove the veracity of his assertions. It was of the view that this evidence could not possibly render lawful his statements, which in any event were exaggerated and offensive.
17. The applicant appealed. On 7 April 2005 the Pest County Regional Court upheld the first-instance decision. It held that the applicant’s assertions were value judgments based on factual allegations expressed in a wholly unlawful manner, since he had articulated his views in a “gratuitously insulting, offensive and harsh way.”
18. The Regional Court also referred to a decision of the Supreme Court which had come to the same conclusion in another defamation case instituted directly by company G. against the applicant. It established that the protection of the rights of others constituted a legitimate restriction on freedom of expression even in cases of public interest. However, it established that the present case did not deal with such matters of general concern, even if company D. had many employees.
19. The applicant lodged a petition for review with the Supreme Court. He pointed out that the final decision had erroneously found his assertions to be statements of fact, since they were the expression of an opinion based on true facts. The applicant also stressed that his aim had been to inform the public about an important matter. Lastly, he was of the view that in expressing his opinion he could not have harmed anyone’s reputation, even if he had used harsh terms, and that he had acted in compliance with relevant domestic law, the well-established case-law of the Constitutional Court and the Supreme Court, as well as with European standards.
20. On 8 September 2005 a single judge of the Supreme Court declared the applicant’s petition inadmissible. It found that the final decision had been correct and in accordance with law, particularly in view of the nature of the applicant’s assertions, which had been gratuitously insulting, offensive and harsh, and violated the plaintiff’s privacy irrespective of their value judgment content. The Supreme Court also pointed out that the right to freedom of expression was not unlimited and should not violate the personality rights of others.
“(1) The protection of personality rights shall also include the protection of the good reputation of others.
(2) In particular, the statement or dissemination of an injurious and untrue fact concerning another person – or the presentation, with untrue implications, of a true fact relating to another person – shall constitute defamation.”
“(1) A person whose personality rights have been infringed may bring the following civil-
a) a claim that the court establish that an infringement has taken place;
b) a claim that the infringement be discontinued and the perpetrator be forbidden from further infringements;
c) a claim that the perpetrator be ordered to give satisfaction by making a declaration or in any other appropriate manner and, if necessary, this be made adequately public by, or at the expense of, the perpetrator;
d) a claim that the prejudicial situation be terminated, and that the situation prior to the infringement be restored by, or at the expense of, the perpetrator ...;
e) a claim for damages under the rules of civil law liability.”
VIOLATED_ARTICLES: 10