ITEMID: 001-5628
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: PREDA AND DARDARI v. ITALY
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicants [Mr Giuliano Preda and Mr Raniero Dardari], who were born in 1936 and 1939, are Italian nationals and live in Bologna. They are retired teachers.
The applicants were represented before the Court by Mr M. Stefani, a lawyer practising in Bologna.
The facts of the case, as submitted by the parties, may be summarised as follows.
Ruling on an application filed jointly by the applicants in 1989, the Emilia-Romagna Regional Administrative Court decided in May 1991 that, when determining the applicants’ career structure and salary, Bologna City Council should also take into consideration, in accordance with Law no. 958 of 1986, the national service carried out by the applicants.
After that judgment had become final and Bologna City Council had begun to implement it, the Italian legislature adopted Law no. 412 of 1992. Section 7 of that statute, giving an interpretation of Law no. 958 of 1986, provided that in future only national service carried out at the time of, or after, the entry into force of the statute could be taken into consideration.
On 10 March 1992 Bologna City Council informed the applicants that in future it would apply that statute when determining their career structure and salary.
In May 1992 the applicants applied to the same administrative court for enforcement of the original judgment and, inter alia, challenged the constitutionality of the legislative provision which was adverse to them. In their submission, that provision infringed the principle that legislation must not be applied retrospectively, since it affected decisions which had become final. The applicants requested the administrative court to find that the first judgment had not been enforced and to appoint a “commissioner ad acta” to enforce it.
The Emilia-Romagna Regional Administrative Court, finding that the constitutionality issue was not manifestly ill-founded, stayed the proceedings and referred the point to the Constitutional Court.
In judgment no. 385 of 7 November 1994 the Constitutional Court dismissed the constitutionality issue. It held that in the field of civil servants’ economic rights, the retrospective application of a legal provision was subject only to the general principle of reasonableness. Since the provision in question was an interpretative one, it was reasonable. Furthermore, it was designed to ensure equal treatment of all those who had carried out national service during the same period.
As the applicants did not resume the proceedings in the administrative court, that court did not rule on their application for enforcement. The applicants submitted that they had not resumed the proceedings because, following the decision of the Constitutional Court, the administrative court would inevitably have dismissed their application.


ITEMID: 001-72978
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF PUZ v. SLOVENIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: David Thór Björgvinsson;John Hedigan
TEXT: 5. The applicant was born in 1933 and lives in Maribor.
6. On 14 July 1975 the applicant, who used to work as a farmer and a car mechanic, was injured in a car accident. The perpetrator of the accident had taken out insurance with the insurance company HUK.
7. On 20 June 1978 the applicant instituted civil proceedings against HUK in the Maribor District Court (Okrožno sodišče v Mariboru) seeking pecuniary and non-pecuniary damages resulting from the accident.
On 11 February 1981 the applicant and insurance community T, acting on behalf of HUK, made an out-of-court settlement concerning non-pecuniary damage. Subsequently, HUK recognized the basis of the claim, but continued to disagree with the amount claimed for the pecuniary damage, including the damage for loss of capacity and business loss.
During the proceedings HUK was represented firstly by T and then by its alleged successor, insurance company ZM.
By 28 June 1994, when the Convention entered into force with respect to Slovenia, the first-instance court decisions were three times quashed on appeal and remitted for re-examination, the last time on 18 March 1994.
Between 4 April 1996 and 25 November 1998, in the fourth trail, the applicant lodged five preliminary written submissions and/or adduced evidence.
Of the seven hearings held between 14 December 1995 and 15 April 1999, one was adjourned at the request of the applicant.
During the proceedings, the court appointed a financial expert. The court also sought two additional opinions from the appointed experts.
At the last hearing, the court delivered a judgment, in which it upheld the applicant’s claim in part.
8. On 1 June 1999 the applicant appealed to the Maribor Higher Court (Višje sodišče v Mariboru). HUK cross-appealed. Insurance company M also appealed.
On 5 December 2000 the Maribor Higher Court rejected ZM’s appeal and allowed the appeals of applicant and HUK and remitted the case to the first-instance court for re-examination. It found, inter alia, that ZM all the time during the proceedings lacked the authority to represent HUK.
9. In the fifth trail, the applicant lodged nine preliminary written submissions and/or adduced evidence between 2 February 2001 and 9 May 2002.
During the proceedings the court appointed a medical expert, a financial expert and an agricultural expert. The court also sought an additional opinion from one of the appointed experts.
Of the seven hearings held between 28 June 2001 and 3 June 2004, none was adjourned at the request of the applicant.
At the last hearing, the court decided to deliver a written judgment. The judgment, upholding the applicant’s claim in part, was served on the applicant on 9 July 2004.
10. At an undetermined time the applicant appealed to the Maribor Higher Court (Višje sodišče v Mariboru). HUK cross-appealed.
On 31 May 2005 the court dismissed the applicant’s appeal and allowed the HUK’s appeal in part.
The judgment was served on the applicant on 14 July 2005.
11. On 18 July 2005 the applicant lodged an appeal on points of law with the Supreme Court (Vrhovno sodišče).
The proceedings are still pending.
12. In the meanwhile, on 10 February 2001 the applicant instituted a separate set of proceedings against the insurance company ZM seeking compensation for damage he sustained due to ZM’s unauthorized interference in the above proceedings.
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-68476
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: CHARZYNSKI v. POLAND
IMPORTANCE: 1
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: 1. The applicant, Mr Piotr Charzyński, is a Polish national who was born in 1967 and lives in Warsaw, Poland. He was represented before the Court by Ms M. Gąsiorowska, a lawyer practising in Warsaw. The respondent Government were represented by their Agent, Mr J. Wołąsiewicz, of the Ministry of the Foreign Affairs.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. On 9 May 1996 the applicant was detained on remand on suspicion of fraud and forgery. He was released on bail on 13 September 1996.
4. On 22 November 1996 a bill of indictment against the applicant and his coaccused was lodged with the Warsaw Regional Court (Sąd Okręgowy). The applicant was charged with several counts of fraud and forgery, allegedly committed between February and May 1996.
5. The first hearing was scheduled for 28 June 2000 but it was adjourned due to the applicant’s absence. Subsequently, the trial court held hearings on 8 November and 6 December 2000 and on 10 January, 8 February, 24 April, 26 June and 8 August 2001. In October 2001 the court held three hearings.
6. On 30 October 2001 the Warsaw Regional Court gave judgment. The applicant and the co-accused were convicted as charged. The applicant was sentenced to three years’ imprisonment and a fine. The applicant appealed.
7. On 4 December 2002 the Warsaw Court of Appeal (Sąd Apelacyjny) heard the appeal. It partly quashed the impugned judgment in so far as it concerned the conviction of the applicant and remitted the case. The remainder of the Regional Court’s judgment, concerning the coaccused, was upheld.
8. On 24 April 2003 the Warsaw District Court held a hearing at which it dismissed an application by the applicant for the bail conditions imposed on him to be lifted.
9. The applicant appealed against this decision. On 10 July 2003 the Warsaw Regional Court dismissed his appeal.
10. The next hearing was scheduled for 1 February 2005.
11. The proceedings are pending before the Warsaw District Court.
12. On 17 September 2004 the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”) entered into force. It lays down various legal means designed to prevent and/or provide redress for the undue length of judicial proceedings.
13. Section 2 of the 2004 Act reads, in so far as relevant:
“1. Parties to proceedings may complain
Pursuant to section 3:
“A complaint may be lodged:
...
(4) in criminal proceedings – by a party or a victim even if he is not a party;
(5) in civil proceedings – by a party (strona), an intervener (interwenient uboczny) or a participant (uczestnik postępowania); ...”
14. Section 4 provides, in so far as relevant:
“1. The complaint shall be examined by the court immediately above the court conducting the impugned proceedings.
2. If the complaint concerns an unreasonable delay in the proceedings before the Court of Appeal or the Supreme Court it shall be examined by the Supreme Court. ...”
15. Section 5 reads, in so far as relevant:
“1. A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending. ...”
16. Section 12 provides for measures that may be applied by the court dealing with the complaint. It reads, in so far as relevant:
“1. The court shall dismiss a complaint which is unjustified.
2. If the court considers that the complaint is justified, it shall find that there was an unreasonable delay in the impugned proceedings.
3. At the request of the complainant, the court may instruct the court examining the merits of the case to take certain measures within a fixed time-limit. Such instructions shall not concern the factual and legal assessment of the case.
4. If the complaint is justified the court may, at the request of the complainant, grant ... just satisfaction in an amount not exceeding PLN 10,000 to be paid by the State Treasury. If such just satisfaction is granted it shall be paid out of the budget of the court which conducted the delayed proceedings.”
17. Section 15 provides for an additional compensatory remedy:
“1. Parties whose complaints have been allowed may seek compensation from the State Treasury ... for the damage they suffered as a result of the unreasonable length of the proceedings.”
18. Section 16 further specifies that:
“A party who has not lodged a complaint about the unreasonable length of the proceedings under section 5 (1) may lodge a claim – under Article 417 of the Civil Code ... – after the proceedings concerning the merits of the case have ended, seeking compensation for the damage which resulted from the unreasonable length of the proceedings.”
19. Section 17 concerns court fees for lodging a complaint:
“1. The complainant shall pay a court fee in the amount of PLN 100....
3. If the court considers that the complaint is justified, it shall reimburse the court fee to the complainant.”
20. Section 18 lays down the following transitional rules in relation to the applications already pending before the Court:
“1. Within six months after the date of entry into force of this law persons who, before that date, had lodged a complaint with the European Court of Human Rights ... complaining of a breach of the right to a trial within a reasonable time guaranteed by Article 6 (1) of the Convention for the Protection of Human Rights and Fundamental Freedoms ..., may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to the Court had been lodged in the course of the impugned proceedings and if the Court has not adopted a decision concerning the admissibility of their case.
2. A complaint lodged under subsection 1 shall indicate the date on which the application was lodged with the Court.
3. The relevant court shall immediately inform the Minister of Foreign Affairs of any complaints lodged under subsection 1.”
21. Articles 417 et seq. of the Civil Code (Kodeks cywilny) provide for the State’s liability in tort.
In the version applicable until 1 September 2004, Article 417 § 1, which lays down a general rule, read as follows:
“1. The State Treasury shall be liable for damage caused by a State official in the course of carrying out the duties entrusted to him.”
22. On 1 September 2004 the Law of 17 June 2004 on amendments to the Civil Code and other statutes (Ustawa o zmianie ustawy – Kodeks cywilny oraz niektórych innych ustaw) (“the 2004 Amendment”) entered into force.
Following the 2004 Amendment, Article 4171 was added, which, in so far as relevant, reads as follows:
“3. If damage has been caused by failure to give a ruling (orzeczenie) or decision (decyzja) where there is a statutory duty to give them, reparation for [the damage] may be sought after it has been established in the relevant proceedings that the failure to give a ruling or decision was contrary to the law, unless otherwise provided for by other specific provisions.”
However, the transitional provision in section 5 of the 2004 Amendment, stated that Article 417, as applicable before 1 September 2004 (see paragraph 21 above), was to apply to all events and legal situations that subsisted before that date.
23. On 18 January 2005 the Supreme Court (Sąd Najwyższy) adopted a resolution (no. III SPP 113/04) in which it ruled that while the 2004 Act produced legal effects as from the date of its entry into force (17 September 2004), its provisions applied retroactively to all proceedings in which delays had occurred before that date and had not yet been remedied.


ITEMID: 001-88622
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: BRAGGER v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
TEXT: The applicant, Mr George Bragger, is a British national who was born in 1938 and lives in Winsford. He was represented before the Court by Ms K. Burton, from the Citizens Advice Bureau in Winsford. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant’s wife died on 29 October 1994. In November 2002, the applicant made a claim for widows’ benefits, namely Widow’s Payment and Widow’s Pension. On 2 January 2003 the applicant was informed that his claim had been disallowed as he was not a woman. The applicant did not appeal as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under United Kingdom law.
The domestic law relevant to this application is set out in Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.


ITEMID: 001-89463
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: M.H. v. SWEDEN
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra
TEXT: 1. The applicant is a stateless Palestinian from Gaza who was born in 1975 and is currently in Sweden. He was represented before the Court by Mr H. Hjalmers, a lawyer practising in Göteborg. The Swedish Government (“the Government”) were represented by their Agent, Ms C. Hellner, of the Ministry for Foreign Affairs.
2.
3. On 3 December 2003 the applicant arrived in Sweden and requested asylum and a residence permit. Before the Migration Board (Migrationsverket), he stated that he was a stateless Palestinian from Gaza and that he had left his home because of the war. His wife and their four children still lived in Gaza with his parents. On two occasions, the applicant claimed, he had been the victim of serious harassment at Israeli road blocks. The first time he had been with 6 other young men in the car and the Israeli soldiers had hit them and forced them to sit on crushed glass. The Red Cross had intervened and helped them. He further stated that he had never been politically active or deprived of his liberty but that some of his cousins had been active within Fatah for many years and currently worked for the Palestinian Authority. Moreover, he invoked the generally very unstable and dangerous situation in Gaza. He submitted his Palestinian identity card, birth certificate and a Palestinian passport issued on 10 May 2004 in Gaza City.
4. On 26 November 2004 the Migration Board granted the applicant a permanent residence permit on humanitarian grounds. It first noted that the applicant had presented no individual grounds on which he could be considered a refugee or a person otherwise in need of protection. However, having regard to the very complex security situation and the difficult humanitarian conditions in Gaza, the Board considered that he should be allowed to remain in Sweden.
5. On 21 October 2005 the District Court (tingsrätten) in Nyköping convicted the applicant of aggravated rape and sentenced him to four years' imprisonment and expulsion from Sweden with a prohibition on returning before 21 October 2015. With regard to the expulsion decision, the court found that the applicant had no connection to Sweden and had only been in the country for a few years. Moreover, according to his own statements, his wife and four children were living in a refugee camp in Gaza. The Migration Board had also been heard and had submitted that there were no impediments to the applicant's expulsion. Thus, having regard to the very serious crime which the applicant had committed, he should be expelled from Sweden. Still, the prohibition on returning to Sweden was limited to 10 years.
6. The applicant appealed against the judgment, including the expulsion decision, to the Svea Court of Appeal (hovrätten) which, in December 2005, upheld the lower court's judgment in full. On 26 January 2006 the Supreme Court (Högsta domstolen) refused leave to appeal.
7. In November 2007 the applicant requested the Government to repeal the expulsion order against him and to grant him leave to remain in Sweden. Before the Government he claimed, inter alia, that he had in fact been politically active while living in Gaza but that he had not informed the Migration Board about it because he had been afraid. He further alleged that he had received several death threats both from the military part of Hamas and from Fatah. The threats had been sent to his mother in Gaza and his brother had sent them to him. He did not know why the threats had been sent to him just at that point in time but he suspected that the members of Hamas and Fatah had heard that he had been convicted of rape in Sweden and imprisoned. This would make it very dangerous for him to return. In support of his claims, he submitted some documents in Arabic as well as some letters in Arabic which he claimed were threats (see below under paragraph 12).
8. Upon request by the Government, the Migration Board submitted its observations on the case. It considered that the applicant had not shown that it was probable that he was a refugee or a person otherwise in need of protection in Sweden and, hence, there were no impediments to the enforcement of the expulsion order. However, it noted that an expulsion to Gaza might be difficult from a practical point of view.
9. On 17 April 2008 the Government rejected the request. It found that there was neither any impediment to the expulsion nor any special reasons to revoke the expulsion decision and grant the applicant leave to remain in Sweden.
10. By fax of 24 April 2008 the border police informed the applicant that he would be expelled from Sweden as soon as possible, probably on 5 or 6 May 2008, and would be transported to Cairo, Egypt. It further informed the applicant that the Palestinian Authority's Office in Stockholm had issued him with a new, valid passport. The Office had also told the police that travelling from Cairo to Gaza posed no problems.
11. On the same day, 24 April 2008, the applicant requested the Court to indicate to the Swedish Government under Rule 39 of the Rules of Court a suspension of his expulsion to Gaza. He claimed that, when living in Gaza, he had worked for Fatah together with some family members. His family was one of the biggest in Gaza and his uncle had held a high position in the political sphere. The applicant had also been an active politician and was therefore well known and recognised by most. Hamas had not liked this and had therefore threatened to kill him. For this reason, he had often been stopped, questioned and beaten when travelling between Gaza and Egypt. Moreover, due to his political involvement, he had also been imprisoned by the Israelis and severely tortured. This experience had scared him so much that he had decided to stop his political work. However, when he had stopped working for Fatah, the Palestinian government had imprisoned and tortured him. Since that time, he had suffered from Post Traumatic Stress Disorder (PTSD). After leaving prison, he had started importing and selling clothes from Turkey. Since the border police still suspected him of being politically active, they had continued to question and beat him every time he tried to leave or enter Gaza. Moreover, when his work for Fatah was over, they had threatened him and he had been afraid to stay in Gaza. Thus, he had fled to Egypt where he had been refused asylum and sent back. He had then tried to go to Morocco but had been refused leave to remain there as well. In a last attempt he had travelled to Sweden.
12. Before the Court, the applicant further alleged that he had received death threats from Fatah in January 2007 and threats from Hamas some time during 2007. Since these two organisations controlled Gaza he was convinced that he would not be able to hide from them. He produced copies of various documents, inter alia, the following:
A medical report, dated 1 March 2000, stating that the applicant was suffering from PTSD and was in need of psychological and social care. It was signed by Dr Khaled Dahlan, psychiatrist at the Gaza community mental health centre.
A medical certificate, dated 29 January 2008, by Dr J. Elverfors, physician at Skogome prison. It stated that the applicant was suffering from anxiety and insomnia and was taking antidepressants. At the beginning of January 2008 he had deliberately cut his arm and had been treated for four days at the psychiatric care unit. He was considered to be suffering from PTSD.
Some copies of documents in Arabic which had not been translated, but allegedly were marriage and family certificates proving that the applicant was related to leaders within the political organisations of Hamas and Fatah.
A copy of an undated letter in Arabic which had been translated into Swedish. It was from Hamas and addressed to the applicant's family in Gaza. It stated that, according to information that the Hamas had obtained, the applicant should be careful since he would be killed no matter where he was found.
A copy of a letter in Arabic which had been translated into English. It was from Fatah, the West of Gaza Region, and was addressed to the applicant's family, warning them that they should be careful and cautious because the applicant was being pursued and would be killed wherever he was found. He should remain outside the country in order to protect his life. The letter was not dated.
13. On 29 April 2008 the Court decided to apply Rule 39 and suspend the expulsion until further notice in order to obtain some further information from the Government. In particular, the Government were requested to inform the Court whether the expulsion of the applicant to Gaza would be possible and, if so, how such an expulsion would be carried out practically in order to ensure that he would arrive in Gaza without a breach of his rights under Articles 2 and 3 of the Convention.
14. Following the Court's request, on 7 May 2008 the Minister of Justice, on behalf of the Government, stayed the enforcement of the expulsion order until further notice. However, the applicant, who had been conditionally released from prison on 29 April 2008, was kept in detention awaiting his expulsion in accordance with a decision by the Migration Board.
15. On 13 June 2008 the Government replied to the Court's request. They first observed that since Hamas had seized power in Gaza in June 2007, the human rights situation in Gaza had drastically deteriorated, with a strong negative impact on the civil population. However, the Swedish migration authorities had expressed the opinion that, although there were other “severe conflicts” (svåra motsättningar) in Gaza, it did not amount to an “armed conflict” (väpnad konflikt) within the meaning of the Aliens Act. Hence, stateless Palestinians from Gaza were not automatically granted residence permits in Sweden and, in the Government's view, an expulsion of the applicant to Gaza was possible. This said, they pointed out that the police authority responsible for the enforcement of the expulsion order had informed them that, due to the decision to stay the enforcement, there were at present no specific plans to enforce the applicant's expulsion order. Moreover, the police authority had assessed that, currently, it was in general not possible to travel via Egypt when enforcing expulsion orders to Gaza, since the Egyptian border to Gaza was temporarily closed. Hence, if an expulsion to Gaza were to be enforced, it would probably be carried out via Israel, following an evaluation to ensure that it could be carried out in a safe manner.
16. The Government further stated that in all cases of enforcement of expulsion orders, Swedish officials were obliged to accompany the alien to the country/region stated in the expulsion order. The enforcement of the order was only considered to be completed when the alien was received by the country of destination and the Swedish authorities were responsible for the alien during the entire enforcement procedure until its completion. If authorities of another State provided assistance, the responsibility still remained with the Swedish authorities. Thus, Swedish officials responsible for the enforcement were obliged to intervene if an alien should be subjected to ill-treatment by the authorities of a third State. They were not allowed to hand over the alien to the authorities of a third State in order for them to complete the expulsion procedure. Moreover, the Swedish officials had to ensure that the alien was allowed to enter the country of destination and was received by that country. Also, an enforcement could only be initiated if there was some degree of certainty that the alien would be received by the country of destination.
17. In his comments in reply to the information provided by the Government, the applicant claimed that he had a right to a permanent residence permit in Sweden on the basis of his political opinions and work for Fatah in Gaza between 1989 and 1999. He had primarily spoken at public gatherings and organised demonstrations and he had been imprisoned and tortured by Israel in 1992 and by Fatah in 1999. Both Hamas and Fatah would try to kill him if he returned. Moreover, he would not be safe if he were returned via either Israel or Egypt and thus there was no safe manner for carrying out the expulsion order without exposing him to serious risk. As there were no direct flights to Gaza, the Swedish authorities would not be able to accompany him all the way to Gaza or to ensure his safety.
18. By virtue of Chapter 1, Article 8 of the Penal Code (Brottsbalken 1962:700), a crime may, apart from ordinary sanctions, result in special consequences defined by law. Expulsion on account of a criminal offence constitutes such a consequence and the decision in this respect is made by the court in which the criminal proceedings take place.
19. Provisions for expulsion on this ground are laid down in the new Aliens Act (Utlänningslagen, 2005:716 – hereinafter referred to as “the 2005 Act”) which replaced the old Aliens Act (Utläningslagen, 1989:529) on 31 March 2006. However, since the rules on expulsion on account of a criminal offence remain the same in substance under the 2005 Act as under the old Aliens Act, reference will only be made to the 2005 Act.
20. According to Chapter 8, Sections 8 and 11 of the 2005 Act, an alien may not be expelled from Sweden on account of having committed a criminal offence unless certain conditions are satisfied and the person's links to Swedish society have been taken into account.
21. Moreover, the court must have regard to the general provisions on impediments to the enforcement of an expulsion decision. Thus, under the provisions of Chapter 12, Section 1 of the 2005 Act, there is an absolute impediment to expelling an alien to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment. Furthermore, a risk of persecution generally constitutes an impediment to enforcing an expulsion decision.
22. A decision to expel an alien on account of having committed a criminal offence is, according to Chapter 12, Section 14 § 3(2) of the 2005 Act, enforced by the police authority. If the police authority finds that there are impediments to the enforcement, it shall notify the Migration Board, which shall refer the matter to the Government to examine whether the expulsion can be executed (Chapter 12, Section 20 of the 2005 Act). If there are no impediments to the enforcement, the alien shall normally be sent to his or her country of origin or, if possible, to the country from which he or she came to Sweden (Chapter 12, Section 4 of the 2005 Act).
23. According to Chapter 8, Section 14 of the 2005 Act, if the Government find that a judgment or decision to expel a person on account of having committed a criminal offence cannot be executed or if there are otherwise special reasons not to enforce the decision, the Government may repeal, in part or completely, the judgment or decision of the court. When considering whether to repeal an expulsion order, the Government shall above all take into account any new circumstances, namely circumstances that did not exist at the time of the courts' examination of the criminal case. In the travaux préparatoires to this provision (Government Bill 1988/89:86, p. 193), strong family ties and severe illness are given as examples of such “special reasons” that may warrant revocation of an expulsion order. In accordance with Chapter 11, Article 13, of the Instrument of Government (Regeringsformen), the Government may also issue a pardon or reduce a penal sanction or other legal effect of a criminal act.
24. In cases where the expulsion order is not revoked, the Government may still grant a temporary residence permit and work permit. For as long as such a permit is valid, the expulsion order may not be executed (Chapter 8, Section 14 of the 2005 Act).
25. On 1 July 2008, in a leading decision concerning an asylum seeker from Gaza, the Director-General for Legal Affairs of the Migration Board made an assessment of the general situation in Gaza and possibilities to enforce expulsion/deportation orders to the area. The Board found that the situation in Gaza could not be regarded as an “armed conflict” (väpnad konflikt) but assessed that there were other “severe conflicts” (svåra motsättningar) in Gaza within the meaning of Chapter 4, Section 2, of the Aliens Act (which was also in line with an earlier decision by the Migration Court of Appeal, dated 26 September 2006, UMS 1-06, and decisions by the Migration Board on 13 and 14 March 2007). This implied that a personal assessment of the individual circumstances in the case had to be made and that a causal link had to be established between the personal risk of the alien and the conflicts in the area. Since the asylum seeker in the case at hand had only invoked the general situation, the Board found that he was not in need of protection in Sweden. Still, the Board noted that the border crossings to Gaza had been closed since the middle of June 2007 and that, currently, it was not practically possible to enforce expulsion/deportation orders to Gaza. In June 2008 negotiations between, inter alia, Hamas and the Israeli authorities had resulted in a ceasefire and there was hope that the borders might be re-opened in the foreseeable future. On the basis of the above, the Board decided to reject the asylum seeker's application for asylum and a residence permit but to grant respite with the enforcement of the deportation order until 5 January 2009, during which time the Board would carefully follow the developments in Gaza.
26. Since Hamas seized power over Gaza in June 2007, Israel has closed all borders into Gaza and imposed an almost complete blockade, affecting every aspect of civilian life. In September 2007 Israel designated the Gaza Strip a “hostile entity”. Due to the blockade, the humanitarian situation in Gaza is now considered to be at its worst since 1967 as roughly 80% of the 1,500,000 population in Gaza are dependent on the limited international aid that the Israelis allow to enter.
27. In June 2008 Hamas and Israel agreed on a ceasefire aimed at halting Palestinian rocket attacks on Israeli territory in return for Israel lifting the blockade. However, Israel insists that “normal business” cannot resume at the Egyptian Rafah border crossing until Hamas releases an Israeli soldier captured by Gaza militants two years ago. Thus, it would appear that the ceasefire has not improved the situation for Gaza's population, except to reduce the number of Israeli incursions and the number of rockets fired by Palestinian militants. Still, Egypt opened the Rafah border crossing to Gaza for one day on Saturday 30 August 2008 as a goodwill gesture before Ramadan. According to sources about 1,000 people were allowed to leave Gaza, essentially those requiring medical treatment or holders of foreign residence permits, and roughly 500 persons entered the area.
28. Following its takeover in June 2007, Hamas established its own security forces, the Executive Forces, and, according to international sources, it enforced laws selectively according to its priorities. In September 2007 Hamas named a de facto High Judicial Council for Gaza and Hamas-affiliated members replaced Palestinian Authority prosecutors and judges. In November 2007 Hamas militants took over the Judicial Compound in Gaza City. This increased lack of law and order in Gaza eroded public confidence in security forces and many Palestinians sought protection from clans and family groups. The press reported widespread abuse, torture and corruption by the security forces. However, the International Committee of the Red Cross (ICRC) has stated that it has regained full access to all facilities (prisons and detention centres) in Gaza, including those administered by Hamas Executive Forces and Izz ad-Din al-Qassam Brigades (the military wing of Hamas).
29. According to reports, Hamas has hit hard against the opposition in Gaza. However, the sole fact of being a member or sympathiser of Fatah has not given rise to persecution. Persons without political influence or a political agenda do not run any significant risk. Moreover, Fatah's civil organisation (that is, excluding the militant parts) has been allowed to continue its work and Fatah members holding the chairmanship in municipal sectors have not been replaced. Reportedly, it is primarily persons who openly criticise Hamas who risk being persecuted, irrespective of whether they belong to Fatah. Within Fatah, persons who are capable of mounting violent resistance against Hamas or who have close connections to the Fatah leadership in Ramallah, are most exposed to persecution. It is generally not a problem to have worked for the Palestinian Authority's police forces while Fatah was in power or to be employed by the Palestinian Authority's police forces today. Still, it appears that certain acts of revenge occur against persons who have committed various kinds of abuse against the population in Gaza. Family members of persons wanted by Hamas are not exposed to an elevated risk of persecution as there does not appear to be any pattern of collective punishment within the internal Palestinian power struggle.
30. The Palestinian Authority issues passports for Palestinians in the West Bank and Gaza. As long as the Egyptian Rafah border crossing is closed, there will remain significant difficulties to return or to enforce deportations to Gaza. It is uncertain when the crossing will re-open.


ITEMID: 001-61207
LANGUAGEISOCODE: ENG
RESPONDENT: IRL
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF MURPHY v. IRELAND
IMPORTANCE: 1
CONCLUSION: No violation of Art. 10
JUDGES: Georg Ress
TEXT: 7. The applicant was born in 1949 and lives in Dublin. He is a pastor attached to the Irish Faith Centre, a bible based Christian ministry in Dublin.
8. In early 1995 the Irish Faith Centre submitted an advertisement to an independent, local and commercial radio station for transmission. The text of the advertisement read as follows:
“What think ye of Christ? Would you, like Peter, only say that he is the son of the living God? Have you ever exposed yourself to the historical facts about Christ? The Irish Faith Centre are presenting for Easter week an hour long video by Dr Jean Scott Phd on the evidence of the resurrection from Monday 10th - Saturday 15th April every night at 8.30 and Easter Sunday at 11.30am and also live by satellite at 7.30pm.”
9. The radio station was prepared to broadcast the advertisement. However, in March 1995 the Independent Radio and Television Commission (“IRTC”) stopped the broadcast pursuant to Section 10(3) of the Radio and Television Act 1988 (“the 1988 Act”). This ruling did not affect the later transmission of the video by satellite.
10. The applicant applied for leave to take judicial review proceedings. He cited the IRTC and the Attorney General as respondents and submitted that the IRTC had wrongly construed Section 10(3) and, alternatively and mainly, that if the IRTC had correctly applied section 10(3) of the 1988 Act, that provision was unconstitutional.
11. By judgment delivered on 25 April 1997, the High Court found that the IRTC had not infringed section 10(3) of the 1988 Act. It further considered that the unspecified right to communicate guaranteed by Article 40(3)(1) of the Constitution was at issue since the advertisement had, as its principal purpose, the communication of information. However, it found that section 10(3) was a reasonable limitation on the right to communicate and that there were good reasons in the public interest for the ban.
12. In so concluding the High Court judge stated as follows:
“I think that it would have been reasonable for [Parliament] to take the view that in Irish society religious advertising on commercial radio might be undesirable in the public interest. ... It is sufficient, in my view, if there were good reasons in the public interest for the ban. Irish people with religious beliefs tend to belong to particular churches and that being so religious advertising coming from a different church can be offensive to many people and might be open to the interpretation of proselytising. Religion has been a divisive factor in Northern Ireland and this is something which [Parliament] may well have taken into account. ... a person listening to commercial radio is for all practical purposes compelled to listen to the advertisements. That being so, it is legitimate for any [Parliament] to have regard to the type of advertisements which might be permitted. The impugned Section enjoys the presumption of constitutionality. It is not obvious to me that a restriction on religious advertising is not a reasonable restriction in the interest of the common good on this particular form of exercise of the right to communicate.
Of course it has been suggested on behalf of the Applicant that a blanket restriction is not proportional and that even if some restriction would be reasonable it would have to be less draconian. The absolute restriction according to the argument of Counsel for the Applicant infringes the doctrine of proportionality. I cannot accept this view. On the legislation as it stands there are very few limitations on the right to advertise and in that sense proportionality has already been taken into account. But at any rate, I do not think that one could subdivide religious advertising. Once a reasonable view can be put forward that religious advertising might be undesirable in the public interest, it would be impossible in practice to devise a wording that might have the effect of permitting certain alleged categories of innocuous religious advertising. It is the fact that the advertisement is directed towards a religious end and not some particular aspect of a religious end which might be potentially offensive to the public.”
13. The Supreme Court rejected the applicant's appeal by judgment dated 28 May 1998. The judgment began by noting that:
“One can best glean the policy of the Act of 1988 by looking at the three kinds of prohibited advertisement collectively. One might get a false impression by singling out one kind of banned advertisement and ignoring the others. All three kinds of banned advertisement relate to matters which have proved extremely divisive in Irish society in the past. [Parliament] was entitled to take the view that the citizens would resent having advertisements touching on these topics broadcast into their homes and that such advertisements, if permitted, might lead to unrest. Moreover, [Parliament] may well have thought that in relation to matters of such sensitivity, rich men should not be able to buy access to the airwaves to the detriment of their poorer rivals.”
14. The Supreme Court considered that religion was a private and a public affair and that the impugned provision was a restriction of the applicant's right freely to communicate and of his right to freedom of expression (Articles 40(3) and 40(6)(1) of the Constitution, respectively) which rights could be limited in the interests of the common good. The court cited with approval previous case-law which considered that the balance found by parliament between the individual rights and the common good should prevail:
“... unless it was oppressive to all or some of the citizens or unless there is no reasonable proportion between the benefit which the legislation will confer on the citizens or a substantial body of them and the interference with the personal rights of the citizen.”
15. The court went on to point out that the real question was whether the limitation imposed upon the various constitutional rights was proportionate to the purpose which parliament wished to achieve. Again quoting with approval previous case-law, it described the principle of proportionality as follows:
“In considering whether a restriction on the exercise of rights is permitted by the Constitution the courts in this country and elsewhere have found it helpful to apply the test of proportionality, a test which contains the notions of minimal restraints on the exercise of protected rights and the exigencies of the common good in a democratic society. This is a test frequently adopted by the European Court of Human Rights and by the Supreme Court of Canada in the following terms. 'The objective of the impugned provision must be of sufficient importance to warrant over-riding a constitutionally protected right. It must relate to concerns pressing and substantial in a free and democratic society. The means chosen must pass a proportionality test. They must (a) be rationally connected to the objective and not be arbitrary, unfair or based on irrational considerations; (b) impair the right as little as possible; and (c) be such that the effects on the rights are proportional to the objective.”
16. The Supreme Court found that section 10(3) of the 1988 Act complied with this test - the restriction was “minimalist”, the applicant had the right to advance his views in speech or writing or by holding assemblies or associating with persons of like mind as himself; he had no lesser right than any other citizen to appear on radio or television; and the only restriction placed upon his activities was that he could not advance his views by a paid advertisement on radio or television. As regards the blanket nature of the ban and the applicant's argument that it would have been possible to introduce a more selective administrative system whereby inoffensive religious advertisements would be permitted, the Supreme Court noted:
“No doubt this is true. But [parliament] may well have decided that it would be inappropriate to involve agents of the State in deciding which advertisements, in this sensitive area, would be likely to cause offence and which not.”
17. The Supreme Court went on to conclude that:
“It therefore appears to the court that the ban on religious advertising contained in section 10(3) of the 1988 Act is rationally connected to the objective of the legislation and is not arbitrary or unfair or based on irrational considerations. It does appear to impair the various constitutional rights referred to as little as possible and it does appear that its effects on those rights are proportional to the objective of the legislation.”
18. In any event, once the impugned provision was broadly within the competence of parliament and parliament had respected the principle of proportionality, the Supreme Court indicated that it was not for it to interfere simply because it might have made a different decision. The presumption of constitutionality of the legislation had not therefore been rebutted and the applicant's appeal could not be allowed.
19. Article 40 of the Constitution provides, in so far as relevant, as follows:
“3(1) The State guarantees in its laws to respect, and, as far as practicable, by its laws defend and vindicate the personal rights of the citizen. ...
6(1) The State guarantees liberty for the exercise of the following rights, subject to public order and morality:–
(i) the right of the citizens to express freely their convictions and opinions.
The education of public opinion being, however, a matter of such grave import to the common good, the State shall endeavour to ensure that organs of public opinion, such as the radio, the press, the cinema, while preserving their rightful liberty of expression, including criticism of Government policy, shall not be used to undermine public order or morality or the authority of the State.
The publication or utterance of blasphemous, seditious, or indecent matter is an offence which shall be punishable in accordance with the law.”
20. Article 44, in so far as relevant, reads as follows:
“2(1) Freedom of conscience and the free profession and practice of religion are, subject to public order and morality, guaranteed to every citizen. ...
(3) The State shall not impose any disabilities or make any discrimination on the ground of religious profession, belief or status.”
21. The 1960 Act was enacted to, inter alia, enable an Authority to be established for the purpose of providing a national television and sound broadcasting service. The national radio and television broadcaster (“RTE”) was also established. Section 20(4) of the 1960 Act provided as follows:
“The Authority shall not accept any advertisement which is directed towards any religious or political end or has any relation to any industrial dispute.”
22. When introducing this provision the Minister explained to Seanad Éireann (the Senate) the rationale of this provision:
“If advertisements directed towards these ends were permitted the Authority would have to accept advertisements from any religious group, including advertisements which the majority of viewers might consider very objectionable and offensive. Therefore, the only sound policy is not to permit any advertisements directed towards religious ends to be broadcast: otherwise the Authority would be placed in a very difficult position. There will of course be religious programmes as there have been on Radio Eireann, and appeals for funds for charitable purposes, but these are quite different and distinct from paid advertisements directed towards religious ends, and I think the policy enshrined in this subsection is the correct one.”
23. Section 18 of the 1960 Act is entitled “Impartiality” and provides as follows:
“(1) It shall be the duty of the Authority to secure that, when it broadcasts any information, news or feature which relates to matters of public controversy or is the subject of current public debate, the information, news or feature is presented objectively and impartially and without any expression of the Authority's own views.
(2) Nothing in this section shall prevent the Authority from transmitting political party broadcasts.”
24. The 1988 Act was enacted to establish the Independent Radio and Television Commission (“IRTC”) having the function of entering into contracts for the provision of sound broadcasting and a television programme service additional to the services already provided by the national broadcaster, RTE.
25. Section 9 is entitled “Duty of sound broadcasting contractor in relation to programmes” and provides as follows:
“(1) Every sound broadcasting contractor shall ensure that –
(a) all news broadcast by him is reported and presented in an objective and impartial manner and without any expression of his own views;
(b) the broadcast treatment of current affairs, including matters which are either of public controversy or the subject of current public debate, is fair to all interests concerned and that the broadcast matter is presented in an objective and impartial manner and without any expression of his own views: Provided that should it prove impracticable in relation to a single broadcast to apply this paragraph, two or more related broadcasts may be considered as a whole, if the broadcasts are transmitted within a reasonable period of each other;
...
(2) Nothing in subsection (1) (a) or (1) (b) shall prevent a sound broadcasting contractor from transmitting political party broadcasts: Provided that a sound broadcasting contractor shall not, in the allocation of time for such broadcasts, give an unfair preference to any political party.”
26. Section 10(3) of the 1988 Act applied to independent radio and television broadcasters the same prohibition applied to RTE (by section 20(4) of the 1960 Act). Section 10(3) provided as follows:
“No advertisement shall be broadcast which is directed towards any religious or political end or which has any relation to an industrial dispute.”
27. This bill, never passed, proposed amending section 10(3) of the 1988 Act. This proposal was prompted by the Supreme Court's judgment in the present case and a subsequent prohibition of an advertisement by the Irish Catholic newspaper pursuant to that provision. During the parliamentary debate on this Bill, the Minister (for Arts, Heritage, Gaeltacht and the Islands) noted that:
“Essentially we are dealing with a provision that is nearly 40 years old. It can be argued that it is timely to reconsider a prohibition such as is contained in these subsections. It can be argued that the blanket ban contained in these provisions is too blunt an instrument to be used in this day and age for what is now a largely well educated society with a sophisticated understanding of the way media, including the very powerful radio and television media, work. It is helpful to our debate that in the recent past the constitutionality of this very provision – that is, the prohibition on advertising directed towards a religious end – was tested in the courts during 1997 and 1998.”
28. Having referred in detail to the High and Supreme Court judgments in the present, the Minister went on:
“In dealing with the Bill, we are considering a proposal by the Opposition to amend a legislative provision that was found to be constitutional as recently as May 1998. We are being asked to amend a provision that was found by the Supreme Court not to be arbitrary or unfair and which impairs our constitutional rights as little as possible. The High Court and the Supreme Court acknowledged the sensitivity of the substance of the existing provisions of the section which the Bill is designed to amend. Anyone who reads these judgments must come to the conclusion that any amendment of the section which would give an agent of the State the power or responsibility of deciding which types of religious advertisements are permissible and which are not must be approached with great care if we are not to create considerable and perhaps insurmountable difficulties for the [IRTC] as suggested in the Bill. ...
The Bill appears to have as its intention that the [IRTC] should have the scope to determine whether a political or religious newspaper or journal is bona fide. Where the journal or newspaper is bona fide, advertisements promoting the sale, for a cover charge of such publications, will not be prohibited under section 10(3) of the 1988 Act, provided the advertisement is directed to the promotion of the newspaper and is not sectarian or directed towards a political end. If the Bill were to be enacted, the [IRTC] would have a number of decisions to make. ... whether a particular religious journal or newspaper is bona fide ... [and] ... whether the advertisement promotes the publication and is not sectarian or directed towards a political end.
I am satisfied that the provisions in the proposed legislation would place the [IRTC] in the position of having to make a value judgment in distinguishing between publications. In order to come to a decision as to whether a particular publication is a bona fide political or religious journal, the [IRTC] would have to assess the goals of any particular publication and possibly the goals of the religious or political organisation itself. Furthermore, the [ITRTC] would have to make an additional value judgment in determining what is or is not sectarian. The Bill provides no guidelines or parameters within which the [IRTC] can make these difficult and sensitive judgments.
There is no provision for an appeals mechanism even though the Bill would give the [IRTC] the power to discriminate between one newspaper and another without providing any detailed grounds for doing so. As I indicated earlier, the High Court and Supreme Court judgments indicated the practical and administrative difficulties that would have to be overcome if a selective ban on the type of advertisements covered by section 10(3) of the 1988 Act was to be introduced. The Bill does not provide any means for dealing with the concerns expressed in these judgments. It would be foolhardy to progress without ensuring that we are not making matters worse.
Turning to the policy rather than the detail proposed in the Bill, it is legitimate to consider whether a more selective ban on advertising directed towards a religious end might be developed. However, to make the ban selective, the means selected would have to ensure that any system provided for assessing the suitability of advertisements would be applied within the limits of the Constitution and in a constitutional manner. At the very least, the rights contained in Article 44 of the Constitution would have to be respected and fair proceedings for those aggrieved would have to be provided. Making the ban selective could also be seen as a curtailment of the right to free speech and expression provided by Article 40.6.1 of the Constitution. It might be a wiser course to consider providing the [IRTC] with powers to ban a particular advertisement in relation to religious material if it considers that the advertisement in question offends public order or morality rather than possibly discriminating between different publications.
However, it is clear that advertising directed towards a religious end is a very special category of advertising. Advertising is to some extent regulated in most countries. Television advertising in particular is regulated throughout the European Union through, at a minimum, the Television without Frontiers Directive. That directive recognises the importance which individual member states attach to the regulation of broadcast advertising in that it provides that a member state may impose stricter regulation on broadcasters operating under its jurisdiction than is provided for in the directive.
The regulation of advertising tends to be based on the general provision that all advertising should be legal, honest, decent and truthful. This is provided for in the codes of standards, practice and prohibitions in advertising, sponsorship and other forms of commercial promotion in broadcasting services which were drawn up under the provisions of section 4(1) of the Broadcasting Act, 1990. The same basic principle is provided in the Code of Advertising Standards for Ireland drawn up by the Advertising Standards Authority for Ireland.
The Advertising Standards Authority for Ireland is a self-regulatory body, which was established by the advertising industry in 1981, and deals with advertising in most media including newspapers, posters and cinema as well as broadcasting. Understandably, the code drawn up under the [UK] Broadcasting Act 1990, does not deal with advertising directed towards a religious end as there is a blanket ban on such advertising. On the other hand, the [Advertising Standards Authority for Ireland] ASAI code specifically excludes advertisements whose principal purpose is to express the advertisers' position on political, religious, industrial relations, social or aesthetic matters or on an issue of public interest or concern from the scope of its code. It is interesting [503] that the [ASAI] decided not to apply its standards to these sensitive areas even though there is no statutory bar against it so doing.
It would be extremely difficult to regulate religious advertising in the same way as advertising for goods and services is regulated. How does one determine if an advertisement directed towards a religious end is truthful? No product or service is being sold. While religious advertisers may hold their beliefs with the utmost conviction, the claims made in such advertisements are matters of belief and are not measurable by any objective standard.
While I oppose the Bill, I am prepared to look at the policy which it attempts to put in place, that is, a more selective ban on advertising directed towards a religious end. If an appropriate amendment can be developed, I would hope to introduce it on Committee Stage during the passage of the Broadcasting Bill, which I hope to publish in the immediate future... . In considering an amendment, I will have to have regard for many of the issues raised in the judgments which I quoted earlier.
These issues include in particular in relation to matters of such sensitivity, that rich men should not be able to buy access to the airwaves to the detriment of their poorer rivals; the provisions of Article 40 of the Constitution conferring a right to communicate and the right of citizens to express freely their convictions and opinions will be clearly respected, and the provisions of Article 44 of the Constitution which guarantee freedom of conscience and the free profession of and practice of religion to every citizen subject to public order and morality and which prohibit any imposition by the State of any disabilities or the making of any discrimination on the grounds of religious profession, belief or status will also be respected.
To achieve these aims it will be necessary to give consideration to devising fair procedures and natural justice measures to ensure that the body charged with regulating such advertisements will uphold and be seen to uphold these rights.
It may be that if we are to consider relaxing the existing total ban on broadcast advertising directed towards a religious end, we must inevitably consider the removal of the prohibition of the ban in its entirety rather than the introduction of a more selective prohibition. Given the concerns which I have already mentioned, it may be the only safe way to proceed. However such a step cannot be taken lightly. To proceed to a more selective prohibition or to the removal of the prohibition without qualification will need considerable thought and consultation. Broadcasting, both television and radio, is recognised as the most powerful mass communications medium ever developed. Audiences for certain programmes are measured in millions. Radio is a secondary medium in that it can be present while other activities in the workplace, the home or the car are being carried out. Unlike a newspaper or magazine where a page can be turned quickly after a brief scan, a person is compelled to listen to, or at least hear, a radio advertisement if the listener wishes to ensure that her or his enjoyment of the programme is not interrupted. Children and young people are constantly exposed to the images, messages and attitudes which are promulgated on radio and television.
Parents might quite properly wish to ensure that their children are exposed only to the religious profession of their choosing. It is possible that many such people would find advertising directed towards a religious end offensive simply because of the particular religious organisation which is making the advertisement. While it might be possible to prevent the broadcast of advertising directed towards a religious end during the hours of broadcasting devoted to children's programming, we all know that children and young people watch prime time television and listen to the radio at all hours so such a measure would only offer limited protection. I will not deal here with the alleged problems surrounding various cults and sects that have caused anxiety to families and whose activities could be interpreted as being directed towards a religious end.
We must proceed very cautiously in this sensitive area. Perhaps in an era of ever increasing numbers of broadcast services becoming available via satellite, which is outside the legislative regime which applies to indigenous broadcasters, the total prohibition on advertising directed towards a religious end is an anachronism. It may be time to rely on our broadcasters not to offend or alienate their audiences through unacceptable advertising in this area. However, any change to the present position must be brought about through careful consideration and consultation with bodies such as the churches, the [IRTC] and broadcasters and the public generally.
The Bill before the House does not address any of the concerns which I have mentioned. There are no definitions or parameters within which the [IRTC] would exercise the powers which the Bill seeks to confer on it. There are no safeguards or recourse provided for those who are aggrieved by the decisions which the [IRTC] might take if this Bill were enacted. The prohibitions in the Broadcasting Authority Acts relating to RTE are not addressed. While I accept that it is appropriate for the House to consider the policy proposed ... we cannot proceed without considerably more thought than is evidenced by the provisions of the Bill. The enactment of the Bill is likely to cause far more problems than it would resolve.
This is a sensitive issue and I commend the Deputies opposite for giving us an opportunity to discuss it at length. While I understand the laudable motives of the Deputies in publishing this Bill, it is important that further consideration is given to the matter. There will be an opportunity to discuss the whole issue of broadcasting when I publish my broadcasting Bill. I will consider this issue and could be in a position to look at the overall problem in that context. If wording can be found we can easily bring that into the Bill by way of an amendment on Committee Stage.”
29. The 2001 Act was mainly designed to facilitate the introduction of digital terrestrial broadcasting in Ireland. The IRTC became the Broadcasting Commission of Ireland and was given expanded functions and powers in relation to digital broadcasting.
30. Section 18 of the 2001 Act applied section 10(3) of the 1988 Act to digital and other broadcasting services. However, section 65 of the 2001 Act relaxed the prohibition of the broadcasting of religious advertising as follows:
“65. Nothing in section 20(4) of the Act of 1960 or section 10(3) of the Act of 1988 (including either of those sections as applied by this Act) shall be construed as preventing the broadcasting of a notice of the fact -
(a) that a particular religious newspaper, magazine or periodical is available for sale or supply, or
(b) that any event or ceremony associated with any particular religion will take place,
if the contents of the notice do not address the issue of the merits or otherwise of adhering to any religious faith or belief or of becoming a member of any religion or religious organisation.”
31. This section was proposed by the Minister at the Committee stage on 30 November 2000 as an added section to the Bill already published. The Committee accepted the proposal without debate.
32. The Directive co-ordinates certain provisions of Member States of the European Community on television broadcasting. Article 12 of the Directive provides, inter alia, that television advertising shall not prejudice respect for human dignity, include any discrimination on grounds of race, sex or nationality or be offensive to religious or political beliefs.
NON_VIOLATED_ARTICLES: 10