ITEMID: 001-76137
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF ZEMAN v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 14+P1-1;Not necessary to examine P1-1 alone;Pecuniary damage - reserved;Costs and expenses - reserved
JUDGES: Christos Rozakis
TEXT: 8. The applicant was born in 1939 and lives in Vienna.
9. At the time of the events the applicant was a civil servant in the administration of the Vienna Municipality. On 21 June 1988 the applicant’s wife, who was also a civil servant in the administration of the Vienna Municipality, died. During her working life she had paid contributions to the pension scheme established under the Pension Act (Pensionsordnung) and the Pension Allowance Act (Ruhe- und Versorgungsgenuβzulagen-gesetz).
10. By decision of 22 August 1988 the Vienna Municipality (Stadtwerke) granted the applicant a survivor’s pension (Versorgungsgeld- und Versorgungsgeldzulage) under the relevant provisions of the Pension Act of 1966, and the Pension Allowance Act. Section 15 of the Pension Act in force at the relevant time provided for a survivor’s pension in the amount of 60 % of the retirement pension of the applicant’s late wife. Hereto was added a proportionate supplementary allowance under Section 6 of the Pension Allowance Act.
11. According to the transitory provision contained in Article II of the Pension Act the monthly payments to which the applicant was entitled amounted to one-third of the survivor’s pension from 1 July 1988, two-thirds of the survivor’s pension from 1 January 1989 and the full survivor’s pension from 1 January 1995.
12. On 1 January 1995 the fourteenth amendment of the Pension Act of 1966 came into force and Article II became invalid with effect from that day.
13. According to Section 15 of the amended Pension Act the survivor’s pension amounted to between 40 and 60% of the retirement pension of the deceased civil servant, the concrete percentage to be calculated on the basis of the retirement pensions of both spouses.
14. According to Section 64e of the Amended Pension Act, former Section 15 was still applicable to entitlements to a widow’s pension or a pension of a widower who was incapable of gainful employment and indigent, which had been acquired prior to 1 January 1995.
15. On 2 January 1995 the Vienna Municipality reduced the amount of the applicant’s survivor’s pension to 40% of his late wife’s retirement pension.
16. On 16 January 1995 the applicant appealed against this decision.
He submitted that, had he been a woman in a similar position, former Section 15 of the Pension Act would have applied to him and he would have been entitled to a survivor’s pension in the amount of 60% of his late wife’s retirement pension instead of the 40% which he received now under the amended Pension Act and the Pension Allowance Act. This violated his constitutional right to equal treatment.
17. On 16 May 1995 the Appeals Board of the Vienna Municipality (Berufungssenat) dismissed the appeal.
18. On 13 July 1997 the applicant filed a complaint with the Constitutional Court (Verfassungsgerichtshof).
19. On 8 October 1997 the Constitutional Court declined to deal with the applicant’s complaint for lack of prospects of success.
20. On 19 December 2001 the Administrative Court (Verwaltungs-gerichtshof) to which the case had been transferred upon the applicant’s request, dismissed the applicant’s complaint.
21. It referred, inter alia, to case-law of the Constitutional Court concerning similar provisions of the Pension Act 1965. The Constitutional Court had found that in the light of continuing change in attitudes towards the equality of sexes, an exclusion of a widower from survivor’s payments would, as a rule, constitute a violation of the principle of equal treatment.
22. There was, however, no constitutional concern about provisions which, in the course of an adjustment process, provided for equal rights of widows and widowers to a survivor’s pension as of a certain date, but maintained differences as regards the entitlement to survivor’s pensions acquired prior to that date. This decision was served on the applicant’s counsel on 25 January 2002.
23. In its 1986 version the relevant provisions of the Vienna Pension Act (Pensionsordnung für Wien, LGBl Nr. 34/1986) read as follows:
"The surviving spouse of a civil servant is entitled to a monthly pension if the civil servant himself had such a claim on the day of his death, or if he would have had such a claim upon retirement on that day."
“ A survivor’s pension shall amount to 60 % of the civil servant’s retirement pension......”
"The monthly instalments to which the widower or the former husband are entitled, are - from 1 August 1986 onwards the amount of one third; - from 1 January 1989 onwards the amount of two thirds; - and from 1 January 1995 onwards the full amount. If the widower or former husband is incapable of gainful employment and indigent, this restriction does not apply."
24. On 1 January 1995, when the fourteenth amendment to the Pension Act came into force, the relevant provisions of this Act were amended as follows:
“1. A survivor’s pension shall amount to a certain percentage of the civil servant’s retirement pension ...
3. ...the percentage shall lie between 40 and 60 ...”
“Provided the entitlement [to a survivor’s pension] had been acquired before 1 January 1995, Section 15 of the Pension Act as in force on 31 December 1994 is still applicable
- to the survivor’s pension of a widow...
- to the survivor’s pension of a widower, if he is incapable of gainful employment and indigent.....”
25. The Pension Act has meanwhile repeatedly been amended. Current Section 72 § 1 reads:
“Provided the entitlement [to a survivor’s pension] had been acquired before 1 January 1995, Section 15 of the Pension Act as in force on 31 December 1994 is still applicable
- to the survivor’s pension of a widow...
- to the survivor’s pension of a widower, if he is incapable of gainful employment and indigent.....”
26. Section 6 of the Pension Allowance Act (Ruhe- und Versorgungs-genuβzulagengesetz) grants a survivor entitled to a survivor’s pension [under the Pension Act] a supplementary pension allowance amounting to a certain percentage of the civil servant’s retirement supplementary allowance. The percentage corresponds to the percentage relied on when calculating the survivor’s pension under the Pension Act.
VIOLATED_ARTICLES: 14
P1
VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-96699
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF MOSKALYUK v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 3
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 6. The applicant was born in 1979 and lives in Moscow.
7. On 2 July 1999 the applicant was arrested on suspicion of robbery and assault and taken to a police station for questioning. He was released the next day on an undertaking not to leave town. On an unspecified date he retained a lawyer to represent him.
8. According to the applicant, on 5 July 1999 P., one of the victims of the assault, identified the applicant as one of the perpetrators. P. confirmed his allegations during the confrontation with the applicant.
9. On 31 August 1999 the prosecutor authorised the applicant’s detention pending investigation and trial. On 17 September 1999 the applicant was taken into custody.
10. The bill of indictment prepared by the police investigator on 22 September 1999 was approved by the prosecutor on 1 October 1999 and subsequently forwarded to the Zyuzinskiy District Court of Moscow.
11. On 12 May 2000 the District Court remitted the matter for additional investigation to the police. The court noted, inter alia, that the investigator had failed to communicate to the applicant the materials from the case file, including the forensic expert’s reports. Following the completion of the investigation, the case file was resent to the court.
12. On 10 October 2000 the District Court granted the applicant’s request to appoint his mother to represent him before the court.
13. On 7 March 2001 the District Court found the applicant guilty as charged and sentenced him to seven years and six months’ imprisonment. The Moscow City Court quashed the applicant’s conviction and remitted the matter for fresh consideration on 5 June 2001.
14. It appears that during the new trial, the District Court refused to appoint the applicant’s mother to represent him. The applicant retained counsel B. as his defender.
15. On 14 September 2001 the applicant asked the court to release him pending trial. He referred to appalling conditions of his detention and his deteriorating health. The court dismissed the applicant’s request.
16. On 14 February 2002 the District Court found the applicant guilty as charged and sentenced him to seven years and six months’ imprisonment. The court based its findings, inter alia, on forensic evidence and the testimonies of the applicant’s accomplice and one of the victims of the assault, who testified in court. Their testimonies were corroborated by the statements made by P., another victim of the assault. The court could not establish P.’s whereabouts and relied on the transcripts of his earlier questioning by the police.
17. The applicant appealed against his conviction. He challenged the lawfulness of the trial court’s findings and alleged that the sentence imposed on him had been too severe. In that respect he mentioned that he had by then spent more than three years in appalling conditions awaiting determination of the criminal charges against him.
18. On 26 June 2002 the Moscow City Court upheld the applicant’s conviction on appeal, dismissing, inter alia, the applicant’s argument that the sentence was too severe.
19. According to the Government, from 17 September 1999 to 13 March 2001 the applicant was detained at remand prison no. IZ-48/2 in Moscow. Between 13 March and 5 July 2001 he was placed in remand prison no. IZ-48/3 in Moscow. On 5 July 2001 the applicant was transferred back to remand prison no. 48/2, where he stayed until 30 May 2002. The applicant did not dispute the information submitted by the Government.
20. According to the applicant, at all times the number of inmates detained in each cell exceeded its capacity. The cells were designed to accommodate twenty to thirty persons. Instead, there were eighty to 100 inmates held there. The number of beds was not sufficient and the inmates had to take turns to sleep. As a result of being detained in such congested conditions for an extended period of time, the applicant contracted tuberculosis.
21. The Government did not provide any information concerning the number of inmates detained with the applicant referring to the destruction of the official relevant records due to the expiration of the statutory time-limit for their storage.
22. On 21 May 2002 the applicant underwent an X-ray examination and was diagnosed with pulmonary tuberculosis. According to the excerpt from his medical file, submitted by the Government, he was examined by a phtisiologist who prescribed him the following medication: isoniazid, pyrazinamide, ethambutol, rifampicin, multivitamins and special food rations.
23. On 30 May 2002 the applicant was transferred to the hospital at remand prison no. IZ-77/1 in Moscow.
24. According to the excerpt from the applicant’s medical file, submitted by the Government, he received the following medication: isoniazid, streptomycin, pyrazinamide, rifampicin and vitamin B. On 6 June 2002 the applicant had a blood test for HIV and syphilis with negative results. On 21 June 2002 he had general blood and urine tests, which showed no anomalies.
25. According to the excerpt from the applicant’s medical file submitted by the Government, on 11 July 2002 the applicant was examined by a doctor, who found him fit for transfer to the correctional colony and authorised his discharge from the prison hospital. The doctor further recommended that the applicant continue in-patient treatment at the colony and indicated that he should undergo another X-ray examination in August 2002.
26. According to the Government, the applicant received special food rations as per applicable domestic standards. His health condition was satisfactory.
27. From 23 July to 21 August 2002 the applicant was transported from Moscow to medical colony no. LIU-10 in the Omsk Region.
28. According to the Government, the conditions of the applicant’s transport were satisfactory. On the train he had an individual sleeping berth. The number of detainees on the train did not exceed the applicable standards. The carriage had natural ventilation, toilet facilities and electric light. The applicant received food and drinking water and was allowed to use the toilet facilities when required.
29. According to the applicant, he did not receive any medical treatment during the whole period of the transfer to the colony.
30. On 21 August 2002 the applicant arrived at medical correctional colony no. LIU-10 in Omsk. He was held there until 14 November 2002.
31. According to the excerpt from the medical file, on 28 August 2002 the applicant was examined by a doctor who noted that the applicant’s health condition was satisfactory and that he did not develop good tolerance to the prescribed medication. The doctor recommended special food rations and out-patient treatment. He compiled a list of medicines for the applicant to be given intermittently, notably every other day. It included ethambutol, rifadin and pyrazinamide.
32. On 1 November 2002 the applicant was examined by a phtisiologist, who noted that the applicant’s condition was satisfactory, his temperature was 36.60C, and he was receiving the necessary food rations. The doctor further recommended the same diet and out-patient treatment prescribed earlier.
33. From 14 November 2002 to 4 January 2003 the applicant was being transported from the Omsk Region to medical correctional colony no. LIU-1 in the Kaluga Region. According to the Government, the conditions of the applicant’s transport were in compliance with the standards established by Article 3 of the Convention.
34. According to the applicant, he received no medical assistance during the whole period of the transfer.
35. On 4 January 2003 the applicant arrived at medical correctional colony no. LIU-1 in the Kaluga Region. According to the Government, he underwent further treatment there and was cured of tuberculosis.
36. On 8 January 2003 the applicant was admitted to hospital in accordance with the decision of the medical panel. In-patient treatment was completed on 27 May 2003. The applicant continued to receive out-patient treatment and on 24 July 2003 the medical panel found him completely cured of tuberculosis. The applicant was discharged from the medical colony.
37. The CPT report on the visit to the Russian Federation carried out from 2 to 17 December 2001 provides as follows:
“102. The CPT is also seriously concerned by the practice of transferring back from SIZO to IVS facilities prisoners diagnosed to have BK+ tuberculosis (and hence highly contagious), as well as by the interruption of TB treatment while at the IVS. An interruption of the treatment also appeared to occur during transfers between penitentiary establishments.
In the interest of combating the spread of tuberculosis within the law-enforcement and penitentiary system and in society in general, the CPT recommends that immediate measures be taken to put an end to the above-mentioned practice.
38. The relevant extracts from Treatment of Tuberculosis: Guidelines for National Programmes, World Health Organisation, 2003, provide the recommendations as follows:
“4.4 Recommended standardized treatment regimens
New cases
Treatment regimens have an initial (or intensive) phase lasting two months and a continuation phase usually lasting four or six months. During the initial phase, consisting usually of isoniazid, rifampicin, pyrazinamide and ethambutol, the tubercle bacilli are killed rapidly. Infectious patients quickly become non-infectious (within approximately two weeks). Symptoms abate. The vast majority of patients with sputum smear-positive TB become smear-negative within two months. During the continuation phase, fewer drugs are necessary but for a longer time. The sterilizing effect of the drugs eliminates the remaining bacilli and prevents subsequent relapse.”
39. The relevant extracts from the 3rd General Report [CPT/Inf (93) 12] by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) read as follows:
38. A prison health care service should be able to provide medical treatment and nursing care, as well as appropriate diets, physiotherapy, rehabilitation or any other necessary special facility, in conditions comparable to those enjoyed by patients in the outside community. Provision in terms of medical, nursing and technical staff, as well as premises, installations and equipment, should be geared accordingly.
There should be appropriate supervision of the pharmacy and of the distribution of medicines. Further, the preparation of medicines should always be entrusted to qualified staff (pharmacist/nurse, etc.).
39. A medical file should be compiled for each patient, containing diagnostic information as well as an ongoing record of the patient’s evolution and of any special examinations he has undergone. In the event of a transfer, the file should be forwarded to the doctors in the receiving establishment.
Further, daily registers should be kept by health care teams, in which particular incidents relating to the patients should be mentioned. Such registers are useful in that they provide an overall view of the health care situation in the prison, at the same time as highlighting specific problems which may arise.
40. The smooth operation of a health care service presupposes that doctors and nursing staff are able to meet regularly and to form a working team under the authority of a senior doctor in charge of the service.”
VIOLATED_ARTICLES: 3


ITEMID: 001-93161
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF SORGUÇ v. TURKEY
IMPORTANCE: 2
CONCLUSION: Violation of Art. 10;Pecuniary and non-pecuniary damage - award
JUDGES: Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 5. The applicant was born in 1930 and lives in Istanbul.
6. The applicant is a professor of construction management at Istanbul Technical University. In his speech, delivered during the “First National Construction Conference”, which took place in 1997, the applicant analysed the progress of the work in his field of discipline. He also distributed a paper in which he criticised the way the examinations for assistant professors were being administered.
7. On 17 September 1997, an assistant professor, N.C.A., brought a civil action for compensation against the applicant, before the Şişli Civil Court of First Instance. He claimed that certain remarks used by the applicant in the paper constituted an attack on his reputation, although his name was not mentioned. The statements in question were as follows:
“The panel for the assistant professorship examination in the discipline of construction management was formed by academics of the construction faculty. This led to the election of very inadequate assistant professors. (...) During this period, before a panel on which [the applicant] was the only professor of construction management, a candidate was notified that his one-page-long report and his examination were not satisfactory. Blaming [the applicant] for the unsatisfactory result, the same candidate filed an action for damages, alleging that he had been beaten by [the applicant]. Before the action for compensation was finalised, he managed to pass the assistant professorship examination before another panel, whose members were not from the construction management department, and without publishing a single article ...”
8. On 10 June 1999 the first instance court rejected N.C.A's claim, holding that these statements were merely a criticism of the academic system and the institutions. N.C.A appealed.
9. On 13 September 1999 the Court of Cassation quashed the decision holding that the following sentence could be taken as an attack on the plaintiff's reputation:
“...he managed to pass the assistant professorship examination before another panel, whose members were not from the construction management department, and without publishing a single article ...”
10. It held that the above sentence implied that, if there had been a different panel, the plaintiff would have failed the examination.
11. On 22 May 2000 the applicant's request for rectification of the latter decision was dismissed.
12. On 7 November 2000 the Şişli Civil Court of First instance, after having considered the Court of Cassation's views on the case, confirmed its earlier decision. It held that the defendant, who was an academic, should be granted the flexibility enjoyed by members of the press or lawyers. The reasoning of the court was as follows:
“If these statements were uttered by a press member or a lawyer, it would have been regarded as freedom of the press or the rights of the defence. If we hold that these remarks made by an academic were against the law, then this would be a breach of his constitutional rights, such as freedom of expression, dissemination of ideas (article 26) and freedom of science and the arts (Article 27).”
13. N.A.C. appealed once again. On 14 March 2001 the Joint Civil Chambers of the Court quashed the decision by 26 votes to 24, holding that the first instance court should have followed the opinion of the Court of Cassation.
14. On 30 May 2001 the applicant's request for the rectification of the latter decision was dismissed.
15. The case was resumed before the Şişli Civil Court of First Instance. The applicant informed the court that, at the beginning of the 1999-2000 academic year, the Discipline Council of the Yıldız Technical University had dismissed N.A.C. from his post on account of his inadequate scientific competence and personal values. In view of this information, the applicant asserted that he had been right to criticise the system of promotion and thus asked the court to dismiss the plaintiff's request.
16. On 12 December 2001 the first instance court followed the decision of the Joint Civil Chambers of the Court of Cassation, and awarded N.A.C. compensation in the sum of 1,000,000,000 Turkish liras (TRL) for non-pecuniary damage. The court did not address the applicant's argument concerning the dismissal of the plaintiff from the university. Both parties appealed against this decision.
17. On 10 June 2002 Court of Cassation upheld the decision of the first instance court.
18. On 13 November 2002 the applicant's request for rectification of the decision of 10 June 2002 was rejected by the Court of Cassation.
19. The applicant was ordered to pay TRL 3,455,215,000, the sum obtained by adding together the principal compensation, interest and court fees.
20. Article 49 of the Code of Obligations provides as follows:
“Any person who alleges that his personality rights have been illegally violated can claim compensation for non-pecuniary damage.
The judge shall take into account the parties' socio-economic situation, their occupation and social status when determining the amount of compensation...”
21. In its Recommendation 1762 (2006), the Parliamentary Assembly of the Council of Europe adopted the following declaration for the protection of academic freedom of expression:
“...
4. In accordance with the Magna Charta Universitatum, the Assembly reaffirms the right to academic freedom and university autonomy which comprises the following principles:
4.1. academic freedom in research and in training should guarantee freedom of expression and of action, freedom to disseminate information and freedom to conduct research and distribute knowledge and truth without restriction;...
4.3. history has proven that violations of academic freedom and university autonomy have always resulted in intellectual relapse, and consequently in social and economic stagnation;...”
VIOLATED_ARTICLES: 10


ITEMID: 001-58065
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 1996
DOCNAME: CASE OF LEVAGES PRESTATIONS SERVICES v. FRANCE
IMPORTANCE: 2
CONCLUSION: No violation of Art. 6-1
JUDGES: John Freeland;N. Valticos;R. Pekkanen
TEXT: 6. The Levages Prestations Services company carries on the business of leasing lifting gear and providing related services. In May 1983 it had recourse to an employment agency for temporary staff, with which it signed five contracts for the provision of manual labour. Subsequently, it refused to pay four of five invoices, initially because it disagreed with the number of hours charged and then on the ground that they were unsigned and did not bear the company stamp.
On 18 September 1984 the Paris Commercial Court ordered it to pay the agency the sum of 29,808.01 French francs (FRF) under the contracts.
7. The applicant company lodged a criminal complaint against a person or persons unknown for forgery of commercial instruments, and against the employment agency for aiding and abetting and for making use of forged instruments.
8. It appealed to the Paris Court of Appeal against the Commercial Court’s judgment and made an application for the appeal to be stayed pending the outcome of the criminal proceedings instituted after it had lodged its complaint.
9. On 1 October 1986 the Court of Appeal made an interlocutory order staying the appeal. The relevant part of the judgment read as follows:
"... the [Levages Prestations Services] company produced the text of the complaint it had lodged with the senior investigating judge in Paris and evidence of payment on 28 October 1985 of the sum of 3,000 francs, being the amount of the deposit requested on 16 October 1985;
...
That complaint concerns not only the identity of the person who signed some of the time sheets but also the number of hours invoiced;
Thus it is the actual documents on which [the employment agency] bases its claim that are alleged to be forgeries;
Pursuant to the rule that civil proceedings arising from a criminal offence must await the decision of the criminal court, the present proceedings must be stayed."
10. On 24 December 1987 the investigating judge ruled that there was no case to answer in respect of the two criminal complaints.
11. The appeal proceedings resumed in the Paris Court of Appeal, which upheld the Commercial Court’s judgment on 28 September 1989.
In its judgment on the merits, following its interlocutory judgment of 1 October 1986, the Court of Appeal referred "for an account of the facts of the case and the claims of the parties to that judgment [of 1 October 1986] and the judgment of the court below ...". It ordered the applicant company, which had continued to argue that the documents were forgeries, to pay FRF 15,000 in damages for having entered an appeal that was designed to gain time and was vexatious to the agency.
12. On 1 December 1989 Levages Prestations Services appealed on points of law to the Court of Cassation against the judgment of 28 September 1989. On 27 April 1990 it filed its pleadings, in which it made no mention of either the criminal proceedings or the Paris Court of Appeal’s interlocutory judgment. It annexed a copy of the Paris Commercial Court’s judgment of 18 September 1984, of its pleadings of 10 March 1986 on appeal and of the Paris Court of Appeal’s judgment of 28 September 1989, against which it was appealing.
In the proceedings in the Court of Cassation the applicant company was represented by a member of the Conseil d’Etat and Court of Cassation Bar, as required by law.
13. On 1 December 1992 the Court of Cassation (Commercial Division) held that the appeal was inadmissible in a judgment which read as follows:
"Having regard to the first paragraph of Article 979 of the New Code of Civil Procedure;
On 1 December 1989 the Levages Prestations Services company appealed on points of law against a judgment delivered on 28 September 1989 by the Paris Court of Appeal which expressly refers to a previous judgment of 1 October 1986 for an account of the facts of the case and the claims of the parties. That judgment of 1 October 1986 thus forms an integral part of the judgment under appeal, but no copy or execution copy of it has been produced. It follows that the appeal on points of law is inadmissible."
14. The New Code of Civil Procedure ("NCCP") contains the following provisions of a general nature:
"The parties shall conduct the proceedings in accordance with the responsibilities incumbent on them. They shall carry out the steps in the proceedings in accordance with the prescribed formal requirements and the time-limits."
"The court shall ensure the proper conduct of the proceedings; it shall be empowered to lay down time-limits and order necessary measures."
"The claims of the parties and the grounds on which they rely shall be set out succinctly in the judgment, which shall be reasoned."
The judgment shall set out the decision in the form of operative provisions.
"On appeal or if a case is remitted by the Court of Cassation, the registrar shall forward the case file to the relevant court either within fifteen days of being requested so to do or within such other time as may be laid down in special provisions.
The registrar shall, if appropriate, make copies of the documents necessary for the proceedings to continue."
"The case file of the court of first instance, which the registrar shall request as soon as an appeal to the Court of Appeal is entered, shall be added to the Court of Appeal’s case file."
15. The procedure for appeals to the Court of Cassation, a special form of appeal, is written and relatively straightforward. However, strict time-limits apply. Appeals on points of law, which are brought against a decision and not against a party, are in principle presented by members of the Conseil d’Etat and Court of Cassation Bar. Members of the Conseil d’Etat and Court of Cassation Bar enjoy a monopoly in representing parties in those courts and have a dual role as their representatives and as officers of the court. Thus, for example, they receive full particulars from the Court of Cassation as to the progress being made in the consideration of the case (such as the appointment of a reporting judge, the lodging of his report, the appointment of an advocate-general and the setting down of the appeal for hearing) and it is then their responsibility to forward this information to their client.
Unlike members of the ordinary Bar, members of the Conseil d’Etat and Court of Cassation Bar enjoy the status of officiers ministériels (State-appointed officers); their number is irrevocably kept at sixty, pursuant to an ordinance of 10 September 1947. They are appointed by the Government after a reasoned opinion has been submitted by the Council of the Conseil d’Etat and Court of Cassation Bar, the President of the Court of Cassation and the Vice-President of the Conseil d’Etat.
Representation by a member of the Conseil d’Etat and Court of Cassation Bar is usually compulsory and any party receiving legal aid is entitled to counsel of his own choosing. However, in certain types of litigation (such as cases concerning parental authority, industrial relations, immigration and political or occupational elections) the parties are exempted by law from having to retain a member of the Conseil d’Etat and Court of Cassation Bar and the procedure is simpler and less formal.
16. The procedure is set out in Articles 974 to 982 NCCP and is the one usually followed in appeals to the Court of Cassation.
17. The notice of appeal, by which the proceedings are commenced, is lodged with and registered by the Court of Cassation registry. It is signed by counsel and contains, in particular, details of the decision appealed against. The registrar forwards it to the respondent "immediately" (Article 977, first paragraph) and must at the same time "request the registry of the court which gave the impugned decision to forward the case file to him" (Article 977, second paragraph).
18. The appellant must lodge his pleading and serve it on the respondent within five months, failing which he will be debarred from proceeding with the appeal. That pleading must contain the points of law on which he relies in his appeal, failing which the appeal will automatically be declared inadmissible without its being necessary for the Court of Cassation to inform the parties beforehand (Court of Cassation, First Civil Division, 28 April 1981, Bulletin civil (Bull. civ.) I, no. 134; 19 May 1981, Bull. civ. I, no. 166).
19. Lastly, the pleading must be accompanied by the decisions and documents referred to in Article 979 NCCP, which provides:
"The appellant must file at the registry a copy of the decision appealed against served either on a party or on a lawyer (avoué or avocat) or an execution copy of that decision, together with a copy of any decision upheld or reversed in the decision appealed against, within the time allowed for lodging the pleading, failing which the appeal will automatically be declared inadmissible.
The appellant must also annex any documents relied on in support of the appeal."
More generally, in accordance with long-established case-law, the appellant must supply any document that it is necessary to read for the purposes of understanding and justifying a ground of appeal put forward, failing which that ground may be declared inadmissible (Court of Cassation judgments of 29 November 1852, Dalloz 1853, 1, 301; 6 December 1871, Dalloz 1872, 1, 192; and 16 December 1891, Dalloz 1892, 1, 67).
The production required in the first paragraph of Article 979 if the appeal is not to be automatically declared inadmissible has given rise to a considerable amount of litigation, and the courts have clarified the scope of this formal requirement.
20. As early as 1962 (Court of Cassation, Third Civil Division, 12 February 1962, Barbezat and Others v. Swietek, Bulletin des arrêts de la Cour de cassation no. 93) the Court of Cassation held that the obligation to annex a copy of the decision appealed against "has to be understood as applying not only to the decision appealed against, but also to decisions that are its necessary complement".
It added subsequently that the filing of the judgment at first instance required by Article 979 was essential because that judgment formed a single unit with the decision on appeal:
"It follows from Articles 954 and 955 of the NCCP that the judgment at first instance forms a single unit with the judgment of the court of appeal as regards both its reasoning and the statement of the parties’ claims and arguments; production of the judgment at first instance is accordingly a formal requirement that is mandatory as a matter of public policy. Any failure to comply with it, which must be raised by the Court of Cassation of its own motion since the Court is under an obligation to verify that appeals to it have been properly made, will result in the appeal on points of law being declared inadmissible.
Since the appellant failed to produce a copy of the judgment at first instance as required, the appeal on points of law is inadmissible." (Court of Cassation, Third Civil Division, 19 November 1986, Desmoulins v. Delambre, Bull. civ. no. 161)
The Court of Cassation has further held, firstly, that where conflicting decisions have been given, the appellant must produce the impugned decision of the court of appeal and a copy of the decisions which conflict with each other (requêtes, 14 February 1837, Jurisprudence générale Cassation, no. 869); secondly, that in the event of an appeal on points of law against a judgment of a court of appeal dismissing a third-party application to set aside a judgment, the appellant must produce a copy of the judgment which gave rise to the application by the third party (Court of Cassation, Civil Division, 6 April 1987, Bull. civ. II, no. 83); and, thirdly, that in the event of an appeal on points of law against a decision given on appeal from a judgment of a court of first instance upholding part of a judgment in default on an application to set that judgment aside, the appellant must produce, in addition to the court of appeal’s decision, the default judgment and the ruling on the application to set it aside, so as to enable the Court of Cassation to have a complete understanding of the impugned decision (Court of Cassation, Commercial Division, 12 February 1962, Bull. civ. III, no. 93).
21. The issue of inadmissibility was often raised where a copy of the judgment at first instance was included in the case file of the proceedings that was sent by the registry of the court which had delivered the judgment. The Third Civil Division of the Court of Cassation held on this point that it could raise the mandatory objection of inadmissibility without informing the parties beforehand (19 November 1986, Consorts Ceresa, Bull. civ. no. 162). For the legal writers who approved this decision, it was not for the Court of Cassation to warn parties, who were represented by counsel, of the risk that this appeal would be declared inadmissible if they did not produce the documents in time. The Court of Cassation’s only obligation in law is to "inform the parties of any grounds of appeal on points of law which could be raised by the Court of its own motion and invite them to make observations within a time it shall set" (Article 1015 NCCP).
22. Regulated by Articles 983 to 995 NCCP, proceedings in which representation is not compulsory are unusual, although many special exemptions are granted. Formalities are kept to a strict minimum.
23. Notice of appeal may be given merely orally. Notice is given to the court which delivered the decision appealed against, but may also be given in accordance with the procedural rules applying to appeals for which representation is compulsory and be lodged with the Court of Cassation. The registrar registers the appeal and issues a receipt that reproduces the content of those Articles of the NCCP in which the appellant’s obligations are set out. He informs the respondent in a notice containing the text of the Articles relating to the respondent’s obligations.
24. Article 988 NCCP provides:
"The registrar shall send the case file to the Court of Cassation’s registry without delay together with:
(i) a copy of the notice of appeal;
(ii) a copy of the receipt for the notice of appeal;
(iii) a copy of the decision appealed against; and
(iv) a copy of the judgment at first instance and any pleadings filed at first instance or on appeal.
He shall immediately send to the Court of Cassation’s registry any document which he receives subsequently."
If the court finds that a document is missing, it stays the proceedings and orders "reconstitution of the case file at the registry of the local court concerned for the purposes of curing the procedural defect" (Court of Cassation, Second Civil Division, 18 January 1957, Bull. civ. II, no. 63).
25. The requirement laid down in Article 979 NCCP for proceedings in which legal representation is compulsory - namely, that a copy of the impugned decision must be produced within the time allowed for lodging the pleading - does not apply to proceedings in which the parties do not have to be represented (Court of Cassation, Social Division, 27 January 1993, Bull. civ. V, no. 27) and an appeal will not be invalidated by a failure to comply with the formal requirements for giving notice of appeal.
26. An appeal on points of law may be declared inadmissible where a failure to carry out a formal requirement prevents the appeal proceeding (for instance, a failure to identify the respondent or the decision being appealed against). The court will of its own motion declare an appeal inadmissible where the appellant has not stated the grounds of his appeal, at least in summary form, in his notice of appeal and fails to state them within three months of lodging it.
Filing a pleading is optional in proceedings in which representation is not compulsory. If, as a result of an error not attributable to the appellant, a pleading lodged within the prescribed time was not included in the court file with the result that the appeal was declared inadmissible, that decision must be set aside and the appeal declared admissible (Court of Cassation, Social Division, 25 March 1985, Bull. civ. V, no. 205). In general, the Court of Cassation is less strict in cases in which representation is not compulsory, where the grounds of appeal may be stated in summary form.
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-5377
LANGUAGEISOCODE: ENG
RESPONDENT: DNK
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: LAURIDSEN v. DENMARK
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant is a Danish citizen, born in 1959. He resides in Hvide Sande, Denmark. Before the Court the applicant is represented by Mr Anders Torbøl, a lawyer practising in Copenhagen.
A.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant is the owner of a fishing vessel. In August 1989 he was fishing in the North Sea during which he exceeded the quota limits concerning maximum catch laid down in the relevant legislation. By indictment of 12 February 1991 the applicant was therefore charged with having exceeded the permitted fishing quotas contrary to Act No. 465 of 27 June 1989 concerning the regulation of certain fisheries, section 89 in conjunction with section 3, pursuant to which the prosecutor requested that the applicant pay a fine. Furthermore, the prosecutor demanded confiscation of the profits stemming from the illegal catch, estimated at 66,200 DKK.
During the proceedings before the City Court (byretten) of Ringkøbing the applicant did not challenge the factual circumstances but maintained in particular that the amount to be confiscated should be reduced.
By judgment of 12 February 1992 the City Court found the applicant guilty of the charges brought against him. The judgment reads in its relevant parts as follows:
(Translation)
kilogramme cod and as this would lead to a value which corresponds best with the real value of the illegal catch. Furthermore, the court finds it appropriate to fix the amount to be confiscated, in accordance with normal practice, without deductions of the amount paid to the crew. Finally, [the applicant’s] lack of knowledge or misunderstanding of the quota, which appears clearly from section 9 § 3, cf. § 4, cannot be taken into consideration. ...
Pursuant to Section 75 § 1 of the Penal Code an amount of 66,200 DKK shall be confiscated from [the applicant].”
The applicant was fined 9,100 DKK.
The applicant appealed against the judgment to the High Court of Western Denmark (Vestre Landsret) maintaining that the fine and, in particular, the amount confiscated were disproportionate to the offence committed.
By judgment of 24 November 1992 the High Court upheld the City Court’s judgment. As regards the calculation of the amount confiscated the High Court referred to previous caselaw of the Supreme Court (Højesteret).
On 11 July 1994 the Ministry of Justice granted the applicant leave to appeal to the Supreme Court before which the applicant maintained that the amount confiscated ought to be reduced. He did not, however, challenge the fine imposed.
By judgment of 2 February 1995 the Supreme Court upheld the High Court’s judgment. The judgment reads in its relevant parts as follows:
(Translation)
“Three judges express the following opinion:
The amounts confiscated from [the applicant] pursuant to Section 75 § 1 of the Penal Code are fixed as the sales value of the illegal catch, solely with deduction of costs connected with landing and sale (landing costs). This conforms with previous case-law, cf. inter alia the Supreme Court's judgment of 7 October 1982 ... .
In evaluating whether there are grounds for changing this practice, account should be taken of the fact that in cases of illegal fishery, substantial consideration is to be given to the preventive function of the confiscation. In this connection, it is worthy of note that it is presupposed in the fisheries legislation that confiscation of the value of the illegal catch is a normal reaction... .
The accused's assistants on the fishing trip in question were remunerated with a share of the net value of the catch and have, objectively speaking, contributed to the offences. It depends on the circumstances of the legal relation between the parties whether, in case of confiscation, [the applicant is] entitled to demand repayment of the wages. We find that no deduction should be allowed for expenses pertaining to wages when fixing the confiscation amounts. Apart from the costs relating to fuel and ice, which can to a certain extent be attributed to the illegal catch, the remaining costs referred to by [the applicant] may be characterised as general costs which should not be taken into consideration either when fixing the amounts to be confiscated.
Thus, we do not find sufficient reasons to change previous case-law according to which the amounts to be confiscated in cases like the present are fixed - unless special circumstances prevail - as the sales value of the illegal catch with the deduction solely of landing costs. Therefore we vote for upholding the High Court's judgment.”
Two judges voted in favour of reducing the amount confiscated by allowing the deduction of certain additional costs.
B. Relevant domestic law
The relevant parts of Section 75 of the Penal Code (straffeloven) read as follows:
(Translation)
“§ 75 (1) The proceeds gained from any criminal act, or a sum equivalent thereto, may, either wholly or in part, be confiscated. Where there is no means of establishing the size of such an amount, a sum thought to be equivalent to the proceeds gained may be confiscated.
(2) The following objects may also be confiscated where this must be regarded as necessary in order to prevent further offences, or where additional special circumstances make further offences likely:
1) objects which have been used, or were intended to be used, in a criminal act;
2) objects produced by a criminal act; and
3) objects with respect to which a criminal act has otherwise been committed.
(3) In place of confiscation of the objects referred to in subsection (2) above, a sum may instead be confiscated which is equivalent to their value or a part thereof.
(4) In place of confiscation under subsection (2) above, arrangements concerning the objects may instead be decided upon for the purposes of preventing further offences.
(5) When an association is dissolved by judgment, its capital, documents, protocols etc. may be confiscated.”


ITEMID: 001-88687
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF ZUBAREV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
TEXT: 4. The applicant was born in 1937 and lives in Obninsk, a town in the Kaluga Region.
5. As a victim of Chernobyl, the applicant was entitled to benefits. Considering himself underpaid, he sued the local welfare authority.
6. On 19 March 2004 the Obninsk Town Court awarded the applicant arrears and fixed new amounts of periodic payments. This judgment became binding on 30 March 2004 but was not fully enforced.
7. On the applicant’s request, on 9 March 2006 the Town Court set the judgment aside due to newly-discovered circumstances.
8. On 17 April 2006 the Town Court awarded the applicant arrears (including sums outstanding after the judgment of 19 March 2004) and fixed new amounts of periodic benefits.
9. Under section 9 of the Federal Law on Enforcement Proceedings of 21 July 1997, a bailiff must enforce a judgment within two months. Under section 242.2.6 of the Budget Code of 31 July 1998, the Ministry of Finance must enforce a judgment within three months.
VIOLATED_ARTICLES: 6
P1
VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-72932
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: GRANDCHAMBER
DATE: 2006
DOCNAME: CASE OF GIUSEPPE MOSTACCIUOLO v. ITALY (No. 1)
IMPORTANCE: 2
CONCLUSION: Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Preliminary objection dismissed (Article 34 - Victim);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court;Reasonable time);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
JUDGES: Luzius Wildhaber;Nicolas Bratza
TEXT: 12. The applicant was born in 1938 and lives in Benevento.
13. On an unspecified date E.A.S., a company, applied to the Benevento District Court for an order against the applicant for payment of 7,500,000 Italian lire (3,873.43 euros (EUR)) in performance of a contract for professional services. In a decision of 13 October 1988 the president of the court granted the application. The order was served on the applicant by E.A.S. on 28 November 1988. On 3 December 1988 the applicant challenged it in the same court.
14. Preparation of the case for trial began on 13 January 1989. On 18 January 1989 the case was joined to another case that was pending between the same parties. The immediate enforcement of the order was suspended. Of the seventeen hearings listed between 14 June 1989 and 26 November 1998 two were devoted to hearing evidence from the applicant, three to hearing other evidence, six were adjourned by the court of its own motion, one was adjourned to allow the parties to reach a friendly settlement, four were adjourned at the request of the applicant or both parties and one was adjourned because E.A.S. had failed to appear.
15. However, on an unspecified date the case was referred to the bench of judges dealing with the oldest cases (sezione stralcio). Of the six hearings listed between 16 March 1999 and 28 November 2001 one was adjourned because E.A.S. had not appeared (owing to the registry’s failure to notify it of the date to which the hearing had been adjourned by the court of its own motion), one because of a lawyers’ strike, one to allow the parties to make their submissions, and two by the court of its own motion.
16. Six hearings later, on 13 April 2005 the court set the case down for hearing of oral submissions on 8 June 2005. On that date judgment was reserved. According to information provided by the applicant on 12 October 2005, the proceedings were still pending.
17. On 10 January 2002 the applicant lodged an application with the Rome Court of Appeal under Law no. 89 of 24 March 2001, known as the “Pinto Act”, complaining of the length of the above-described proceedings. He asked the court to rule that there had been a breach of Article 6 § 1 of the Convention and to order the Italian State to pay compensation for the pecuniary and non-pecuniary damage sustained. The applicant claimed EUR 14,460.94 in pecuniary and non-pecuniary damages. He sought the reimbursement of his legal costs, including those incurred before the Court, but did not quantify or give particulars of them.
18. In a decision of 21 June 2002, the text of which was deposited with the registry on 3 September 2002, the Court of Appeal found that the length of the proceedings had been excessive. It held as follows:
“... Despite a number of adjournments for which the judicial authorities are not responsible because they were ordered at the request of the parties or because of a lawyers’ strike, the length of the proceedings was unreasonable.
Whilst the allegation of pecuniary damage and personal injury is not supported by any proof, the applicant very likely suffered mental distress on account of the unjustified length of the proceedings. The resultant damage, given the foregoing considerations, can be assessed at 1,000 euros, and the legal costs, including those for the proceedings before the European Court of Human Rights, at 800 euros.”
The Court of Appeal awarded the applicant EUR 1,000 on an equitable basis in compensation for non-pecuniary damage, and EUR 800 for costs and expenses, including those incurred before the Court, but without giving a breakdown.
19. In a letter of 21 January 2003 the applicant informed the Court of the outcome of the domestic proceedings and asked the Court to continue its examination of his application.
20. The applicant did not indicate that he had appealed to the Court of Cassation.
21. The Court of Appeal’s decision was served on 23 January 2003 and became final on 24 March 2003. The applicant served the authorities with notice to comply on 11 October 2003. The applicant lodged an application for a garnishee order with the Rome judge responsible for enforcement proceedings and a hearing was held on 28 March 2004. After obtaining a garnishee order on 27 May 2004, the amounts were paid on an unspecified date after service of the order.
22. Award of just satisfaction in the event of a breach of the requirement to dispose of proceedings within a reasonable time and amendment to Article 375 of the Code of Civil Procedure.
CHAPTER II
Just satisfaction Section 2 Entitlement to just satisfaction
“1. Anyone sustaining pecuniary or non-pecuniary damage as a result of a violation of the Convention for the Protection of Human Rights and Fundamental Freedoms, ratified by Law no. 848 of 4 August 1955, on account of a failure to comply with the ‘reasonable-time’ requirement in Article 6 § 1 of the Convention, shall be entitled to just satisfaction.
2. In determining whether there has been a violation, the court shall have regard to the complexity of the case and, in the light thereof, the conduct of the parties and of the judge deciding procedural issues, and also the conduct of any authority required to participate in or contribute to the resolution of the case.
3. The court shall assess the quantum of damage in accordance with Article 2056 of the Civil Code and shall apply the following rules:
(a) only damage attributable to the period beyond the reasonable time referred to in subsection 1 may be taken into account;
(b) in addition to the payment of a sum of money, reparation for non-pecuniary damage shall be made by giving suitable publicity to the finding of a violation.”
Section 3 Procedure
“1. Claims for just satisfaction shall be lodged with the court of appeal in which the judge sits who has jurisdiction under Article 11 of the Code of Criminal Procedure to try cases concerning members of the judiciary in the district where the case in which the violation is alleged to have occurred was decided or discontinued at the merits stage or is still pending.
2. The claim shall be made on an application lodged with the registry of the court of appeal by a lawyer holding a special authority containing all the information prescribed by Article 125 of the Code of Civil Procedure.
3. The application shall be made against the Minister of Justice where the alleged violation has taken place in proceedings in the ordinary courts, the Minister of Defence where it has taken place in proceedings before the military courts and the Finance Minister where it has taken place in proceedings before the tax commissioners. In all other cases, the application shall be made against the Prime Minister.
4. The court of appeal shall hear the application in accordance with Articles 737 et seq. of the Code of Civil Procedure. The application and the order setting the case down for hearing shall be served by the applicant on the defendant authority at its elected domicile at the offices of State Counsel (Avvocatura dello Stato) at least fifteen days prior to the date of the hearing before the Chamber.
5. The parties may apply to the court for an order for production of all or part of the procedural and other documents from the proceedings in which the violation referred to in section 2 is alleged to have occurred and they and their lawyers shall be entitled to be heard by the court in private if they attend the hearing. The parties may lodge memorials and documents up till five days before the date set for the hearing or until expiry of the time allowed by the court of appeal for that purpose on an application by the parties.
6. The court shall deliver a decision within four months after the application is lodged. An appeal shall lie to the Court of Cassation. The decision shall be enforceable immediately.
7. To the extent that resources permit, payment of compensation to those entitled shall commence on 1 January 2002.”
Section 4 Time-limits and procedures for lodging applications
“A claim for just satisfaction may be lodged while the proceedings in which the violation is alleged to have occurred are pending or within six months from the date when the decision ending the proceedings becomes final. Claims lodged after that date shall be time-barred.”
Section 5 Communications
“If the court decides to allow an application, its decision shall be communicated by the registry to the parties, to State Counsel at the Court of Audit to enable him to start an investigation into liability, and to the authorities responsible for deciding whether to institute disciplinary proceedings against the civil servants involved in the proceedings in any capacity.”
Section 6 Transitional provisions
“1. Within six months after the entry into force of this Act, anyone who has lodged an application with the European Court of Human Rights in due time complaining of a violation of the ‘reasonable-time’ requirement contained in Article 6 § 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms, ratified by Law no. 848 of 4 August 1955, shall be entitled to lodge a claim under section 3 hereof provided that the application has not by then been declared admissible by the European Court. In such cases, the application to the court of appeal must state when the application to the said European Court was made.
2. The registry of the relevant court shall inform the Minister for Foreign Affairs without delay of any claim lodged in accordance with section 3 and within the period laid down in subsection 1 of this section.”
Section 7 Financial provisions
“1. The financial cost of implementing this Act, which is put at 12,705,000,000 Italian lire from 2002, shall be met by releasing funds entered in the three-year budget 2001-03 in the chapter concerning the basic current-liability estimates from the ‘special fund’ in the year 2001 forecast of the Ministry of the Treasury, Economy and Financial Planning. Treasury deposits shall be set aside for that purpose.
2. The Ministry of the Treasury, Economy and Financial Planning is authorised to make the appropriate budgetary adjustments by decree.”
23. On appeal from decisions delivered by the courts of appeal in “Pinto” proceedings, the Court of Cassation, sitting as a full court (Sezioni Unite), gave four judgments (nos. 1338, 1339, 1340 and 1341) on 27 November 2003, the texts of which were deposited with the registry on 26 January 2004, quashing the appeal court’s decision and remitting the case for a rehearing. It held that “the case-law of the Strasbourg Court is binding on the Italian courts regarding the application of Law no. 89/2001”.
In its judgment no. 1340 it affirmed, inter alia, the principle that
“the court of appeal’s determination of non-pecuniary damage in accordance with section 2 of Law no. 89/2001, although inherently based on equitable principles, must be done in a legally defined framework since reference has to be made to the amounts awarded, in similar cases, by the Strasbourg Court. Some divergence is permissible, within reason.”
24. Extracts from the plenary Court of Cassation’s judgment no. 1339 deposited with the registry on 26 January 2004
“... 2.- The present application poses the fundamental question of what legal effect must be given – in implementing the Law of 24 March 2001 no. 89, and in particular in determining the non-pecuniary damage arising out of the breach of the reasonable length of proceedings requirement – to the judgments of the European Court of Human Rights, whether considered generally as interpretative guidelines which the said Court has laid down with regard to the consequences of the said violation, or with reference to a specific case in which the European Court has already had occasion to give a judgment on the delay in reaching a decision. ...
As stipulated in section 2.1 of the said Law, the legal fact which gives rise to the right to the just satisfaction that it provides for is constituted by the “violation of the Convention for the Protection of Human Rights and Fundamental Freedoms, ratified in accordance with the Law of 4 August 1955 no. 848, for failure to comply with the reasonable time referred to in Article 6, paragraph 1 of the Convention.” In other words, Law no. 89/2001 identifies the fact constituting the right to compensation by reference to a specific provision of the European Convention on Human Rights. This Convention instituted a Court (the European Court of Human Rights, with its seat in Strasbourg) to ensure compliance with the provisions contained therein (Article 19). Accordingly, the competence of the said court to determine, and therefore to interpret, the significance of the said provisions must be recognised.
As the fact constituting the right conferred by Law no. 89/2001 consists of a violation of the European Convention on Human Rights, it is for the Court of the European Convention on Human Rights to determine all the elements of such a legal fact, which thus ends by being “brought into conformity” by the Strasbourg Court, whose case-law is binding on the Italian courts in so far as the application of Law no. 89/2001 is concerned.
It is not necessary therefore to pose the general problem of the relationships between the European Convention on Human Rights and the internal judicial system, which the Advocate-General (Procuratore Generale) has amply discussed in court. Whatever opinion one may have about that controversial issue and therefore about the place of the European Convention on Human Rights in the context of the sources of domestic law, it is certain that the direct implementation in the Italian judicial system of a provision of the European Convention on Human Rights, established by Law no. 89/2001 (that is, by Article 6 § 1 in the part relating to “reasonable time”), cannot diverge from the interpretation which the European Court gives of the same provision.
The opposite argument, which would permit a substantial divergence between the application accorded to Law no. 89/2001 in the national system and the interpretation given by the Strasbourg Court to the right to reasonable length of proceedings, would deprive the said Law no. 89/2001 of any justification and cause the Italian State to violate Article 1 of the European Convention on Human Rights, according to which ‘The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention’ (including the said Article 6, which provides for the right to have a case decided within a reasonable length of time).
The reason behind the enactment of Law no. 89/2001 was the need to provide a domestic judicial remedy against violations in respect of the duration of proceedings, so as to give effect to the subsidiary character of intervention on the part of the Court of Strasbourg, expressly provided for by the European Convention on Human Rights (Article 35: “the Court may only deal with the matter after all domestic remedies have been exhausted”). The European system for the protection of human rights is founded on the said principle of subsidiarity. From it derives the duty of the States which have ratified the European Convention on Human Rights to guarantee to individuals the protection of the rights recognised by the European Convention on Human Rights, above all in their own internal order and vis-à-vis the organs of the national judicial system. And this protection must be “effective” (Article 13 of the European Convention on Human Rights), that is, of a kind to remedy the claim without the need for recourse to the Strasbourg Court.
The domestic remedy introduced by Law no. 89/2001 did not previously exist in the Italian system, with the consequence that appeals against Italy in respect of a violation of Article 6 of the European Convention on Human Rights had “clogged” (the term used by rapporteur Follieri in the sitting of the Senate of 28 September 2000) the European Court. The Strasbourg Court observed, prior to Law no. 89/2001, that the said failures to comply on the part of Italy “reflect a continuing situation that has not yet been remedied and in respect of which litigants have no domestic remedy. This accumulation of breaches accordingly constitutes a practice that is incompatible with the Convention” (see the four judgments of the Court delivered on 28 July 1999 in the cases of Bottazzi, Di Mauro, Ferrari and A. P.).
Law no. 89/2001 constitutes the domestic remedy to which a “victim of a violation” (as defined by Article 34 of the European Convention on Human Rights) of Article 6 (failure to comply with the reasonable-time requirement) must have recourse before applying to the European Court to claim the “just satisfaction” provided for in Article 41 of the European Convention on Human Rights, which, when the violation exists, is only awarded by the Court “if the internal law of the High Contracting Party concerned allows only partial reparation to be made”. Law no. 89/2001 has therefore allowed the European Court to declare inadmissible applications lodged with it (including before the Act was passed) and aimed at obtaining just satisfaction provided for in Article 41 of the European Convention on Human Rights for the excessive length of proceedings (Brusco v. Italy, decision of 6 September 2001).
This mechanism for implementation of the European Convention on Human Rights and observance of the principle of subsidiarity in respect of interventions of the European Court of Strasbourg does not operate, however, in cases in which the Court holds that the consequences of the established violation of the European Convention on Human Rights have not been redressed by domestic law or that this has been done only “partially”, because in such an event the said Article 41 provides for the intervention of the European Court to protect the “victim of the violation”. In such cases an individual application to the Strasbourg Court on the basis of Article 34 of the European Convention on Human Rights is admissible (Scordino and Others v. Italy, decision of 27 March 2003) and the Court acts directly to protect the rights of the victim whom it considers not to have been adequately protected by domestic law.
The judge of the adequacy or inadequacy of the protection that the victim has had from domestic law is, obviously, the European Court, whose duty it is to apply Article 41 of the European Convention on Human Rights to ascertain whether, in the presence of a violation of a provision of the European Convention on Human Rights, the internal law has been able to fully redress the consequences of this violation.
The argument whereby, in applying Law no. 89/2001, the Italian court may follow a different interpretation from that which the European Court has given to the provisions of Article 6 of the European Convention on Human Rights (violation of which is the fact giving entitlement to the right to compensation attributed by the said national law) implies that the victim of the violation, if he or she receives reparation at national level considered inadequate by the European Court, must obtain the just satisfaction provided for in Article 41 of the European Convention on Human Rights from the latter Court. This would defeat the purpose of the remedy provided for in Italian law by Law no. 89/2001 and entail a violation of the principle of the subsidiarity of the intervention of the Strasbourg Court.
It is therefore necessary to concur with the European Court of Human Rights, which, in the above-mentioned decision on the Scordino application (concerning the inadequacy of the protection afforded by the Italian courts in implementing Law no. 89/2001), affirmed that “it follows from the principle of subsidiarity ... that the national courts must, where possible, interpret and apply domestic law in accordance with the Convention”.
... The preparatory documents of Law no. 89/2001 are even more explicit. In the report concerning the bill of Senator Pinto (proceedings of the Senate no. 3813 of 16 February 1999) it is affirmed that the compensatory mechanism proposed in the legislative initiative (and then adopted by the Act) secures for the applicant “a protection analogous to that which he or she would receive in the international court”, as the direct reference to Article 6 of the European Convention on Human Rights makes it possible to transfer to domestic level “the limits of applicability of the same provision existing at international level, limits which depend essentially on the State and on the development of the case-law of the Strasbourg authorities, especially that of the European Court of Human Rights, whose decisions must therefore guide ... the domestic court in the definition of these limits”.
... 6. – The considerations expounded in sections 3-5 of the document refer in general to the importance of the interpretative guidance of the European Court on the implementation of Law no. 89/2001 with regard to reparation for non-pecuniary damage.
In this particular instance, however, any possibility for the national court to exclude non-pecuniary damage (despite having found a violation of Article 6 of the European Convention on Human Rights) must be considered as non-existent because such is precluded by the previous decision of the European Court which, with reference to the same proceedings, had already ascertained that the unjustified delay in reaching a decision had had consequences involving non-pecuniary damage for the applicant, which the Court itself redressed for a limited period. From such a decision of the European Court it follows that, once the national court has ascertained that the violation has continued in the period following that considered in the said decision, the applicant has continued to suffer non-pecuniary damage, which must be compensated for in application of Law no. 89/2001.
It cannot therefore be maintained – as the Rome Court of Appeal has done – that compensation is not due because of the small amounts at stake in the proceedings in question. Such a reason, apart from being rendered immaterial by the fact that the European Court has already ruled that non-pecuniary damage had been sustained because of delay in the same action, is in any case incorrect, because the amount of what is at stake in an action in which non-compliance with reasonable time-limits has been ascertained can never have the effect of excluding non-pecuniary damage, given that the anxiety and distress resulting from the length of the proceedings normally also occur in cases in which the amounts at stake are small; hence this aspect may have the effect of reducing the amount of compensation but not of totally excluding it.
7 – In conclusion the decision appealed against must be quashed and the case remitted to the Rome Court of Appeal, which, in a different composition, will order payment to the applicant of the non-pecuniary damages payable as a result of the violation of the reasonable-time requirement for the period following 16 April 1996 alone, taking as a reference point payments of the same kind of damages by the European Court of Human Rights, from which it may diverge, but only to a reasonable extent (HR Court, 27 March 2003, Scordino v. Italy)”.
25. The Court of Cassation held as follows:
“...Where the victim of unreasonably lengthy proceedings dies prior to the entry into force of Law no. 89 of 2001 [known as the “Pinto Act”] this shall preclude a right [to just satisfaction] from arising and passing to the heirs, in accordance with the general rule that a person who has died cannot become entitled to a right conferred by an Act that is passed after their death...”
26. The Court of Cassation judges noted that the right to compensation for a violation of the right to a hearing within a reasonable time derived from the Pinto Act. The mechanism set in place by the European standard did not give applicants a cause of action before the domestic courts. Accordingly, the right to “just satisfaction” could neither be acquired nor transferred by a person who had already died by the time the Pinto Act came into force. The fact that the deceased had, while alive, lodged an application with the Strasbourg Court was not decisive. Section 6 of the Pinto Act did not constitute, as the applicants had maintained, a procedural standard bringing about a transfer of powers from the European Court to the domestic courts.
27. In this case, which concerned the possibility or otherwise of transferring to heirs the right to compensation deriving from a breach of Article 6 § 1 on account of the length of the proceedings, the First Division of the Court of Cassation referred the case to the full court indicating that there was a conflict between the case-law authorities, that is, between the restrictive approach taken by the Court of Cassation in the earlier judgments regarding heirs and the Pinto Act and the four judgments delivered by the Court of Cassation, sitting as a full court, on 26 January 2004 to the extent that a less strict interpretation would lead to the conclusion that this right to compensation has existed since Italy ratified the European Convention on 4 August 1955.
28. In the case giving rise to the order mentioned above referring the case to the full court (see preceding paragraph), the Court of Cassation, sitting as a full court, established the following principles, thus preventing any further conflicting decisions being given by the courts:
(i) Law no. 848 of 4 August 1955, which ratified the Convention and made it enforceable, introduced into domestic legal order the fundamental rights, belonging to the category of rights conferred on the individual by public law, provided for in the first section of the Convention and which correspond to a large extent with those set forth in Article 2 of the Constitution. In that respect the Convention provisions are confirmatory and illustrative. ...
(ii) It is necessary to reiterate the principle that the act giving rise to the right to reparation conferred by domestic law corresponds to a breach of the provision in Article 6 of the Convention, which is immediately applicable in domestic law.
The distinction between the right to a hearing within a reasonable time, introduced by the European Convention on Human Rights (or even pre-existing as a constitutionally protected value), and the right to equitable reparation, which was allegedly introduced only by the Pinto Act, cannot be allowed in so far as the protection provided by the domestic courts does not depart from that previously offered by the Strasbourg Court, the domestic courts being bound to comply with the case-law of the European Court. ...
(iii) Accordingly, the right to equitable reparation for loss sustained as a result of the unreasonable length of proceedings prior to the entry into force of Law no. 89/2001 must be acknowledged by the domestic courts even in favour of the heirs of a party who introduced the proceedings before that date, subject only to the condition that the claim has not already been lodged with the Strasbourg Court and the Court has not ruled on admissibility. ...
29. This judgment of the Court of Cassation concerned an appeal by the Ministry of Justice challenging the Court of Appeal’s award of non-pecuniary damages to a juristic person. The Court of Cassation referred to the decision reached in the case of Comingersoll v. Portugal [GC], no. 35382/97, ECHR 2000IV and, after referring to the four judgments of the full court delivered on 26 January 2004, found that its own case-law was not in line with the European Court. It held that there was no legal barrier to awarding just satisfaction to “juristic” persons according to the criteria of the Strasbourg Court. Accordingly, since the Court of Appeal had correctly decided the case the appeal was dismissed.
30. The Court of Cassation made the following observations:
“ ... [Whereas] non-pecuniary damage is the normal, albeit not automatic, consequence of a breach of the right to a hearing within a reasonable time, it will be deemed to exist, without it being necessary to specifically prove it (directly or by presumption), on the basis of the objective fact of the breach, on condition that there are no special circumstances indicating the absence of any such damage in the actual case concerned (Cass. A.P. 26 January 2004 nos. 1338 and 1339).
- the assessment on an equitable basis of compensation for non-pecuniary damage is subject – on account of the specific reference in section 2 of Law no. 89 of 24 March 2001 to Article 6 of the European Convention on Human Rights (ratified by Law no. 848 of 4 August 1955) – to compliance with the Convention, in accordance with the judicial interpretation given by the Strasbourg Court (non-compliance with which results in a violation of the law), and must therefore, as far as possible, be commensurate, in substantive and not merely formal terms, with the amounts paid in similar cases by the European Court, it being possible to adduce exceptional circumstances that suggest themselves in the particular case, on condition that they are reasoned, not excessive and not unreasonable (Cass. A.P. 26 January 2004 no. 1340). ...
- a discrepancy in the method of calculation [between the Court’s case-law and section 2 of the Pinto Act] shall not affect the general vocation of Law no. 89 of 2001 to meet the objective of awarding proper compensation for a breach of the right to a hearing within a reasonable time (vocation acknowledged by the European Court in, inter alia, a decision of 27 March 2003 in Scordino v. Italy (application no. 36813/97)), and accordingly shall not allow any doubt as to the compatibility of that domestic standard with the international commitments entered into by the Italian Republic when ratifying the European Convention and the formal recognition, also at constitutional level, of the principle stated in Article 6 § 1 of that Convention...”
31. In the report CM/Inf/DH(2004)23, revised on 24 September 2004, the Ministers’ deputies made the following indications regarding an assessment of the Pinto remedy:
“...11. As regards the domestic remedy introduced in 2001 by the “Pinto Act”, a number of shortcomings remain, particularly in connection with the effectiveness of the remedy and its application in conformity with the Convention: in particular, the law does not provide yet for the acceleration of pending proceedings. ...
109. In the framework of its examination of the 1st annual report, the Committee of Ministers expressed concern at the fact that this legislation did not foresee the speeding up of the proceedings and that its application posed a risk of aggravating the backlog of the appeal courts. ...
112. It should be pointed out that in the framework of its examination of the 2nd annual report, the Committee of Ministers had noted with concern that the Convention had no direct effect and had consequently invited the Italian authorities to intensify their efforts at national level as well as their contacts with the different bodies of the Council of Europe competent in this field. ...”
32. In this interim resolution the Ministers’ deputies indicated as follows:
“The Committee of Ministers
Noting ...
“...the setting-up of a domestic remedy providing compensation in cases of excessive length of proceedings, adopted in 2001 (the "Pinto” law), as well as the recent development of the case-law of the Court of cassation, increasing the direct effect of the case-law of the European Court in the Italian legal system, while noting that this remedy still does not enable for acceleration of proceedings so as to grant effective redress to all victims;
Stressing that the setting-up of domestic remedies does not dispense states from their general obligation to solve the structural problems underlying violations;
Finding that despite the efforts undertaken, numerous elements still indicate that the solution to the problem will not be found in the near future (as evidenced in particular by the statistical data, the new cases before both domestic courts and the European Court, the information contained in the annual reports submitted by the government to the Committee and in the reports of the Prosecutor General at the Court of cassation); ...
Stressing the importance the Convention attaches to the right to fair administration of justice in a democratic society and recalling that the problem of the excessive length of judicial proceedings, by reason of its persistence and extent, constitutes a real danger for the respect of the rule of law in Italy; ...
URGES the Italian authorities to enhance their political commitment and make it their effective priority to meet Italy’s obligation under the Convention and the Court’s judgments, to secure the right to a fair trial within a reasonable time to all persons under Italy’s jurisdiction. ...”
33. The European Commission for the efficiency of justice was set up at the Council of Europe by Resolution Res(2002)12 with the aim of (a) improving the efficiency and the functioning of the justice of member States with a view to ensuring that everyone within their jurisdiction can enforce their legal rights effectively, thereby generating increased confidence of the citizens in the justice system and (b) enabling a better implementation of the international legal instruments of the Council of Europe concerning efficiency and fairness of justice.
34. In its framework programme (CEPEJ (2004) 19 Rev 2 § (7) the CEPEJ noted that “the mechanisms which are limited to compensation are too weak and do not adequately incite the States to modify their operational process, and provide compensation only a posteriori in the event of a proven violation instead of trying to find a solution for the problem of delays.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-5662
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: NICOL and SELVANAYAGAM v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Georg Ress;Nicolas Bratza;Simon Brown
TEXT: The applicants are British citizens, born on 8 June 1976 and 28 January 1969 respectively and living in County Durham and Newcastle-upon-Tyne respectively. They are represented before the Court by Mr Kevin Kerrigan, a solicitor from the University of Northumbria Student Law Office.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicants were both participants in an anti-fishing protest that took place on the morning of Saturday 28 May 1994. The applicants, along with five other protestors, attended a fishing competition taking place in Albert Park, a public park in Middlesborough. There were approximately thirty to forty anglers fishing around a lake. The intention of the applicants was to effect a "sabotage" of the angling match by preventing fish from being caught, or reducing the number of fish caught, and raising public awareness of cruelty to fish. The applicants approached some of the anglers and explained that they were not there to cause any damage or violence but that they intended to frighten fish away from the hooks to prevent the fish being caught. The applicants threw twigs in the water close to the hooks to disturb the surface of the water, whilst other protestors sounded horns to create noise in order to frighten the fish. The applicants contend that no violence or threats of violence against the persons or property of the anglers took place. The Government contend that the applicants threw sticks at the anglers’ lines, creating the risk of damage to property.
Police officers arrived at the scene and told the applicants to cease their behaviour. When the applicants refused they were arrested, along with two other protestors, for "breach of the peace". The arrests took place at 12.25 p.m. and the applicants were taken to Middlesborough police station arriving at 12.40 p.m.. Detention was authorised, the reason stated on the custody record being to, "allow a period of calming, and to determine method of processing". The applicants were charged between 4 p.m. and 4.15 p.m. of the same day with "Breach of the Peace".The charge read as follows:
"That you on Saturday 28 May 1994 at Middlesborough in the County of Cleveland in a certain place namely Albert Park, were guilty of conduct whereby a breach of the peace was likely to be occasioned.
Contrary to Common Law."
The applicants were then detained at the police station. This detention was justified on the following grounds:
"Bail denied to prevent the prisoner from disrupting the fishing event tomorrow, also one scheduled for June. To appear at the next available court, TMC [Teeside Magistrates' Court] AM 30.5.94.."
The applicants appeared before Teeside Magistrates' Court at 12 p.m. on 30 May 1994. The magistrates adjourned the case and the applicants were released.
The applicants appeared before the court on 26 September 1994 for a full hearing. The court found the charge of "breach of the peace" proved against the applicants and proposed to bind them over. The first applicant was invited to agree to be bound over in the sum of £100 to keep the peace and be of good behaviour for a period of 2 years. The second applicant was invited to agree to be bound over in the sum of £75 to keep the peace and be of good behaviour for a period of 2 years.
Both applicants refused to be bound over, stating they were not guilty of a breach of the peace. After two brief adjournments the magistrates committed the first applicant (then aged 18) to a Young Offender Institution for 21 days, under the provisions of section 9 of the Criminal Justice Act 1982. The second applicant was committed to prison for 21 days, under section 115 of the Magistrates' Courts Act 1980.
The applicants appealed against the decision of the court by way of case stated. In the stated case, the justices found that the conduct of the applicants would clearly have disrupted and interfered with the lawful activities of the anglers involved in the competition, that their conduct was intended to prevent that lawful conduct, and that the consequences of the applicants’ conduct would almost certainly have been a breach of the peace, as it was likely that some or all of the anglers would resort to forceful means of restraining the applicants, which in turn would have resulted in acts of violence. In the Divisional Court, on 10 November 1995, Lord Justice Simon Brown stated:
“… Before the court can properly find that the natural consequence of lawful conduct by a defendant would, if persisted in, be to provoke another to violence, it should, it seems to me, be satisfied that in all the circumstances it is the defendant who is acting unreasonably rather than the other person. ... Putting it another way, the court would surely not find a [breach of the peace] proved if any violence likely to have been provoked on the part of others would be not merely unlawful but wholly unreasonable – as of course, it would be if the defendant’s conduct was not merely lawful but such as in no material way interfered with the other’s rights. A fortiori, if the defendant was properly exercising his own basic rights, whether of assembly, demonstration or free speech.”.
The appeal failed and leave to appeal to the House of Lords was refused.
Breach of the peace – which does not constitute a criminal offence (R. v. County of London Quarter Sessions Appeals Committee, ex parte Metropolitan Police Commissioner [1948] 1 King’s Bench Reports 670) – is a common-law concept of great antiquity. However, as Lord Justice Watkins, giving judgment in the Court of Appeal in the case of R. v. Howell ([1982] 1 Queen’s Bench Reports 416), remarked in January 1981:
“A comprehensive definition of the term ‘breach of the peace’ has very rarely been formulated…” (p. 426)
He continued:
“We are emboldened to say that there is likely to be a breach of the peace whenever harm is actually done or is likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance.” (p. 427)
In a subsequent case before the Divisional Court (Percy v. Director of Public Prosecutions [1995] 1 Weekly Law Reports 1382), Mr Justice Collins followed Howell in holding that there must be a risk of violence before there could be a breach of the peace. However, it was not essential that the violence be perpetrated by the defendant, as long as it was established that the natural consequence of his behaviour would be to provoke violence in others:
“The conduct in question does not itself have to be disorderly or a breach of the criminal law. It is sufficient if its natural consequence would, if persisted in, be to provoke others to violence, and so some actual danger to the peace is established.” (p. 1392)
A person may be arrested without warrant by exercise of the common law power of arrest, for causing a breach of the peace or where it is reasonably apprehended that he is likely to cause a breach of the peace (Albert v Lavin [1982] Appeal Cases 546 at p. 565). This power was preserved by the Police and Criminal Evidence Act 1984 (sections 17(6) and 25(6)).
Magistrates have powers to “bind over” under the Magistrates’ Courts Act 1980 (“the 1980 Act”), under common law and under the Justices of the Peace Act 1361 (“the 1361 Act”).
A binding-over order requires the person bound over to enter into a “recognizance”, or undertaking secured by a sum of money fixed by the court, to keep the peace or be of good behaviour for a specified period of time. If he or she refuses to consent to the order, the court may commit him or her to prison, for up to six months in the case of an order made under the 1980 Act or for an unlimited period in respect of orders made under the 1361 Act or common law. If an order is made but breached within the specified time period, the person bound over forfeits the sum of the recognizance. A binding-over order is not a criminal conviction (R. v. County of London Quarter Sessions Appeals Committee, ex parte Metropolitan Police Commissioner [1948] 1 King’s Bench Reports 670).
In addition to the statutory procedure under the 1980 Act described in the case of Steel and Others, magistrates have powers to bind over at common law and under the 1361 Act. These powers allow magistrates, at any stage in proceedings before them, to bind over any participant in the proceedings if they consider that the conduct of the person concerned is such that there might be a breach of the peace or that his or her behaviour has been contra bonos mores. It is not open to the justices to attach specific conditions to a binding-over order (Ayu [1959] 43 Criminal Appeal Reports 31; Goodlad v. Chief Constable of South Yorkshire [1979] Criminal Law Review 51).
An order of the magistrates to require a person to enter into a recognizance to keep the peace or to be of good behaviour can be appealed either to the High Court or the Crown Court. An appeal to the High Court is limited to questions of law, and proceeds by way of “case stated”. An appeal to the Crown Court, under the Magistrates’ Courts (Appeals from Binding-Over Orders) Act 1956, section 1, proceeds as a rehearing of all issues of fact and law.
In response to a request by the Lord Chancellor to examine binding-over powers, the Law Commission (the statutory law reform body for England and Wales) published in February 1994 its report entitled “Binding Over”, in which it found that:
“We are satisfied that there are substantial objections of principle to the retention of binding over to keep the peace or to be of good behaviour. These objections are, in summary, that the conduct which can be the ground for a binding-over order is too vaguely defined; that binding-over orders when made are in terms which are too vague and are therefore potentially oppressive; that the power to imprison someone if he or she refuses to consent to be bound over is anomalous; that orders which restrain a subject’s freedom can be made without the discharge of the criminal, or indeed any clearly defined, burden of proof; and that witnesses, complainants or even acquitted defendants can be bound over without adequate prior information of any charge or complaint against them.” (Law Commission Report no. 222)
The Law Commission recommended abolition of the power to bind over.
Section 9 of the Criminal Justice Act 1982 concerns the detention of persons aged 18 to 20 for default or contempt. A refusal to enter into a recognizance to keep the peace by a person ordered to do so by a Magistrates’ Court acting under the Magistrates Court Act 1980 s. 115 is a “kindred offence” for the purposes of this section, and accordingly a person aged 18 who refuses to enter a recognizance may properly be committed to custody under this section: Howley v Oxford, 81 Cr. App. R. 246, DC.
Section 9 provides as follows:
“9.(1) In any case where, but for section 1(1)above, a court would have power-
(a) to commit a person under 21 but not less than 18 years of age to prison for default in payment of a fine or any other sum of money; or
(b) to make an order fixing a term of imprisonment in the event of such a default by such a person to prison for contempt of court or any kindred offence,
the court shall have power, subject to section 1(5) above, to commit him to be detained under this section or, as the case may be, to make an order fixing a term of detention under this section in the event of default, for a term not exceeding the term of imprisonment. ”
The normal position under domestic law for persons charged with criminal offences is set out in section 38(1) of PACE. At the time of the applicants’ detention it provided as follows:
“Where a person arrested for an offence otherwise than under a warrant endorsed for bail is charged with an offence, the custody officer shall order his release from police detention, either on bail or without bail, unless
(a) if the person arrested is not an arrested juvenile-
(i) his name or address cannot be ascertained or the custody officer has reasonable grounds for doubting whether a name or address furnished by him as his name or address is his real name or address;
(ii) the custody officer has reasonable grounds for believing that the detention of the person arrested is necessary for his own protection or to prevent him from causing physical injury to any other person or from causing loss of or damage to property; or
(iii) the custody officer has reasonable grounds for believing that the person arrested will fail to appear in court to answer to bail or that his detention is necessary to prevent him from interfering with the administration of justice or with the investigation of offences or of a particular offence;
(b) if he is an arrested juvenile-
(i) any of the requirements of paragraph (a) above is satisfied; or
(ii) the custody officer has reasonable grounds for believing that he ought to be detained for his own interests.”