ITEMID: 001-72015
LANGUAGEISOCODE: ENG
RESPONDENT: DNK
BRANCH: GRANDCHAMBER
DATE: 2006
DOCNAME: CASE OF SØRENSEN AND RASMUSSEN v. DENMARK
IMPORTANCE: 1
CONCLUSION: Violation of Art. 11;Pecuniary damage - financial award;Costs and expenses partial awards - Convention proceedings
JUDGES: Christos Rozakis;Elisabeth Steiner;Françoise Tulkens;Giovanni Bonello;Jean-Paul Costa;John Hedigan;Josep Casadevall;Khanlar Hajiyev;Kristaq Traja;Loukis Loucaides;Luzius Wildhaber;Nicolas Bratza;Peer Lorenzen;Snejana Botoucharova;Vladimiro Zagrebelsky;Volodymyr Butkevych
TEXT: 9. The first applicant was born in 1975 and lives in Århus, Denmark. In the spring of 1996 he did his national service. Since a few months remained before he could commence studying mathematics and physics at the University of Århus, on 10 May 1996 he applied for a job as a holiday relief worker in a company, FDB Distributionen (“FDB”). For this purpose, he filled in an application form, which contained a pre-printed paragraph stating, among other things:
“To obtain the job it is mandatory to be a member of one of the trade unions affiliated to the Danish Confederation of Trade Unions (LO). You will be informed on request of the name of the union.”
10. In a letter of 20 May 1996, the applicant was offered the job from 3 June until 10 August 1996 and informed that his terms of employment would be regulated by an agreement concluded between FDB and a trade union called SID, which was affiliated to LO, and of which the applicant was obliged to become a member.
11. From his first payslip on 20 June 1996 the applicant became aware that he was paying a subscription to SID, although he had not applied for membership. Instead, at the time of his appointment he had applied for membership of a trade union called Denmark's Free Trade Union (Danmarks Frie Fagforening). In a letter of 23 June 1996, the applicant informed his employer and the shop steward that he did not want to pay the subscription to SID because he had been told that, as a holiday relief employee, he would not be given full membership of SID.
12. Consequently, on 24 June 1996, the applicant was dismissed for not satisfying the requirements for obtaining the job as he was not a member of a trade union affiliated to LO.
13. The applicant, represented by Denmark's Free Trade Union, instituted proceedings before the High Court of Western Denmark (Vestre Landsret) against FDB, requesting that FDB be ordered to acknowledge that his dismissal was unlawful and to pay him compensation. He alleged that section 2(2) of the Protection against Dismissal due to Association Membership Act of 9 June 1982 (Lov om beskyttelse mod afskedigelse på grund af foreningsforhold), as amended on 13 June 1990, violated Article 11 of the Convention as it allowed an employer to require an employee to be a member of a specific association in order to obtain employment. The applicant stated, among other things, that he did not share SID's political views.
14. On 18 November 1998 the High Court found for FDB, stating as follows:
“The High Court finds it established that the applicant was aware that membership of SID was a condition for his employment in the company. Thus, since the applicant did not comply with this requirement the conditions for dismissing him are fulfilled in accordance with section 2, subsection (2), in conjunction with subsection (1), of the Protection against Dismissal due to Association Membership Act.
Therefore, the pertinent question is whether the Act in issue, and with it the applicant's dismissal, is at variance with Article 11 of the European Convention on Human Rights, in the light of the interpretation this Article has been given by the European Court of Human Rights in its recent case-law.
The Protection against Dismissal due to Association Membership Act was passed by Parliament in 1982 as a result, inter alia, of the British Rail judgment (Young, James and Webster v. the United Kingdom, Series A no. 44) delivered by the European Court of Human Rights in 1981. In this judgment it was established that in certain circumstances Article 11 also secured the negative right to freedom of association. In the assessment of whether, subsequent to the Court's recent case-law, the domestic courts should disregard section 2(2) of the Protection against Dismissal due to Association Membership Act, the starting-point must be taken from the Act of 1992 incorporating the European Convention on Human Rights. According to the preparatory notes, incorporation of the Convention was not intended to change the existing balance between the Danish parliament and the Danish courts. Thus, in the view of the High Court, while taking into account the rights and obligations that may be inferred from the European Convention on Human Rights, Parliament still has considerable discretion when laying down Danish law. In this connection, it is also of importance to note that a decision abolishing or limiting the existing possibility of entering into closed-shop agreements will have far-reaching consequences for the Danish labour market.
In support of the applicant's understanding of the scope of Article 11, reference has been made to the Sigurður A. Sigurjόnsson v. Iceland judgment of 1993 and the Gustafsson v. Sweden judgment of 1996. However, in the view of the High Court, an interpretation of these judgments does not establish with the necessary certainty that section 2(2) of the Protection against Dismissal due to Association Membership Act is at variance with Article 11 of the Convention.”
15. On appeal, the Supreme Court (Højesteret) upheld the High Court's judgment on 8 June 1999. In its reasoning the Supreme Court stated as follows:
“The Protection against Dismissal due to Association Membership Act (Law no. 285 of 9 June 1982) was passed notably in order to comply with the negative right to freedom of association to the extent that such an obligation could be established according to the interpretation of Article 11 of the Convention given by the European Court of Human Rights in the Young, James and Webster v. the United Kingdom judgment, Series A no. 44 (British Rail).
As stated in the Supreme Court's judgment of 6 May 1999 [see paragraph 21 below], the latest judgments of the European Court of Human Rights provide no grounds for a different assessment of the lawfulness of closed-shop agreements and their consequences from that appearing in the British Rail judgment. In addition, section 2(2), of the Protection against Dismissal due to Association Membership Act of 9 June 1982 raises no doubts as to its compatibility with this judgment.”
16. The second applicant was born in 1959 and lives in Haderslev, Denmark. He is a gardener by profession. He became a member of SID in the mid-1980s, but resigned his membership after a few years as he felt unable to support its political affiliations. Instead, he became a member of the Christian Trade Union (Kristelig Fagforening).
17. Having been unemployed for a while, he was offered a job at a nursery (Gartneriet i Regnmark I/S) on condition that he became a member of SID as the employer had entered into a closed-shop agreement with that trade union. The applicant commenced the job on 17 May 1999 and rejoined SID, although he still did not agree with its political views.
18. Article 78 of the Danish Constitution (Danmarks Riges Grundlov) provides:
“1. Citizens shall, without prior permission, be free to form associations for any lawful purpose.
2. Associations employing violence, or aiming to attain their object by violence, by instigation to violence, or by similar punishable influence on persons holding other views, shall be dissolved by a court judgment.
3. No association shall be dissolved by any government measure; however, an association may be temporarily prohibited, provided that proceedings are instituted immediately for its dissolution.
4. Cases relating to the dissolution of political associations may, without special permission, be brought before the Supreme Court [Rigets øverste domstol].
5. The legal effects of such dissolution shall be determined by statute.”
19. The relevant parts of the Protection against Dismissal due to Association Membership Act of 9 June 1982 (which was passed as a direct result of the Court's ruling in Young, James and Webster v. the United Kingdom, 13 August 1981, Series A no. 44), as amended by Law no. 347 of 29 May 1990, read as follows:
“An employer may not dismiss an employee on the ground that he or she is a member of an association or of a specific association.”
“(1) An employer may not dismiss an employee on the ground that he or she is not a member of an association or of a specific association.
(2) Subsection (1) shall not apply if the employee, prior to recruitment, knew that the employer made membership of an association or of a specific association a condition for being employed with the enterprise.
(3) Subsection (1) shall furthermore not be applicable where an employee who is a member of an association is informed subsequent to recruitment that membership is a condition for continued employment with the enterprise.”
“Sections 1 and 2 of the Act shall not apply in respect of employers whose business is specifically aimed at furthering political, ideological, religious or cultural ends, where the membership of the person concerned must be considered of importance for the business.”
“Where an employee is dismissed contrary to the provisions of this Act, the dismissal must be overruled and the employment continued or restored, if a claim to this end is made. However, this shall not apply to employees in the private sector if, in special cases and following the balancing of the interests of the parties, it is found manifestly unreasonable to claim continuation of the employment or reinstatement.”
“(1) Where an employee is dismissed contrary to the provisions of this Act without the dismissal being overruled, the employer shall pay compensation.
(2) The compensation, which may not be less than one month's salary or wages and may not exceed twenty-four months'' salary or wages.”
“(1) Cases under this Act must be processed as quickly as possible.
(2) During the hearing of a case concerning dismissal, the court may order that the dismissal should not become effective until the case has been finally decided by means of a judgment. The judgment may specify that the dismissal will not be stayed in case of an appeal.”
20. The question of the lawfulness of closed-shop agreements in relation to the 1982 Act and the European Convention on Human Rights was examined by the Supreme Court in a judgment of 6 May 1999 (concerning Mr Jensen, applicant in the original case of Jensen and Rasmussen v. Denmark (dec.), no. 52620/99, 20 March 2003). The Supreme Court found for the defendant and awarded him damages in the amount of 200,000 Danish kroner (DKK). As regards Article 11 of the Convention, the Supreme Court stated:
“According to the Young, James and Webster v. the United Kingdom judgment of 13 August 1981, Series A no. 44 (the British Rail judgment) it is in breach of Article 11 of the European Convention on Human Rights concerning freedom of association to dismiss an employee who refuses to join a trade union with whom the employer has entered into a closed-shop agreement at a time after the employment of the employee, in so far as membership was not a condition for the employment. The Court emphasised that it did not decide on closed-shop agreements as such, but only on its effect on the three applicants.
In the Sigurður A. Sigurjόnsson v. Iceland judgment of 30 June 1993, the European Court of Human Rights found a violation of Article 11 in a situation where a holder of a taxi licence had his licence revoked because he resigned from a specific association of taxicab owners. The Court found it of importance that obligatory membership of the association was imposed on him by law and that there was no duty to join the association when Sigurður A. Sigurjόnsson obtained his taxi licence as the original requirement to do so lacked a legal basis. As in the British Rail judgment, the Court emphasised that it did not decide on the scope of Article 11 of the Convention in relation to the negative freedom of association.
Against this background, the Supreme Court finds no reasons in the Sigurður A. Sigurjόnsson judgment to assess the lawfulness of closed-shop agreements and their consequences any differently than what appears from the British Rail judgment. The same goes for the remainder of the judgments that the parties have referred to (Sibson v. the United Kingdom, judgment of 20 April 1993, Series A no. 258, and Gustafsson v. Sweden, judgment of 25 April 1996, Reports of Judgments and Decisions 1996-II).”
Also, in another judgment of 12 May 2000, the Supreme Court found that closed-shop agreements as such were not contrary to Article 11 of the Convention as that provision had been interpreted by the Strasbourg Court.
21. The relevant parts of the Act on Private Contributions to Political Parties and Disclosure of the Accounts of Political Parties (Law no. 404 of 13 June 1990 – Lov om private bidrag til politiske partier og offentliggørelse af politiske partiers regnskaber), as amended by Law no. 394 of 14 June 1995, provide:
“Employers' federations, trade unions and other trade associations whose main objectives are to attend to the economic interests of the trade group to which their members belong shall ensure that any financial contribution to political parties or for party-political purposes in general collected as part of membership fees are collected on a voluntary basis for each individual member.”
“(1) A member who wishes to be exempt from payment of contributions to political parties or for political purposes in general as part of the membership fees shall submit a written declaration to this effect.
(2) Once a year the association shall forward to its members a form containing the wording of such a declaration. Publishing the form in a members' journal or a similar publication may fulfil this obligation. The declaration must have the following wording: 'I wish to be exempt from payment of contributions to political parties or for party-political purposes in general as part of my membership fees.'
(3) The declaration must be forwarded to the auditor of the association. This must be apparent from the form referred to in subsection (2) above. Declarations sent to association offices by members must be forwarded to the auditor immediately. The Minister of Justice may lay down further provisions on the layout of the form and on the auditors' treatment of declarations received.
(4) Information on persons who are exempt from payment of contributions or who have made a request to this effect may not be subject to any unauthorised disclosure.”
22. A general description of the background of closed-shop agreements in the Danish labour market is given below.
The struggle at the end of the nineteenth century between, on the one side, employees and their unions (notably what is today called the Danish Confederation of Trade Unions (LO)) and, on the other side, the employers and their federations (mainly the Confederation of Danish Employers (Dansk Arbejdsgiverforening – DA)) resulted in the so-called September Agreement of 1899 between LO and DA.
The Agreement laid down five major principles:
(1) the right of employees to organise within trade unions;
(2) the right of employers to manage and control work;
(3) the right to industrial action (strikes, boycotts and lockouts) in order to obtain, for example, a collective agreement;
(4) the embargo on industrial action, which means that no strikes are lawful during the term of a collective agreement; and
(5) the establishment of a special arbitration tribunal to deal with all violations of the September Agreement.
The September Agreement is unique in that it has formed the basis of all subsequent general agreements between management and labour. Traditionally, the Danish legislature plays a minor role as regards the conditions governing wages, salaries and employment. Therefore, only to a certain extent does the Danish labour market have legislation which does not emanate from European Union directives, examples being the Salaried Employees' Act (Funktionærloven) and the Holiday Act (Ferieloven). Accordingly, rights imposed by statute in other countries have in Denmark been obtained by means of agreements between the labour-market partners. It is thus a characteristic feature of Danish law that the relationship between employers and employees is basically governed by a combination of agreements (collective and individual), labour-law principles, general statutes and rules laid down in pursuance of statutes. More than 80% of all employees in Denmark are trade union members.
From figures provided by Statistics Denmark (Danmarks Statistikbank) and the Ministry of Employment (Beskæftigelsesministeriet), in 2001 the Danish workforce consisted of 2,799,958 persons (inclusive of the unemployed). Of these, 1,611,715 were employed within the private sector and 937,826 within the public sector.
The Government estimate that nearly 80% of all employees are covered by collective agreements. It appears that the applicants disagree with this estimation.
The institution of closed-shop agreements is a long-standing practice in Denmark. Typically, a closed-shop agreement states that an employer has undertaken to hire and employ only members of the trade union that is party to the collective agreement concluded by the employer. Closed-shop agreements are unlawful in the public-sector labour market as they would be in conflict with the principle of equality under Danish administrative law. Also, they are not concluded in the part of the private-sector labour market covered by the general agreement between DA and LO, because DA considers the use of closed-shop provisions to be an interference with employers' managerial rights. Thus, closed-shop agreements are mainly of importance in collective agreements concluded with employers not affiliated to an employers' organisation.
The precise number of employees covered by closed-shop agreements is unknown. However, from figures provided by DA and the Christian Trade Union, the Government estimate that approximately 220,000 wage earners are affected in some way by closed-shop agreements – that is, less than 10% of all Danish employees on the labour market. The applicants submit that this estimation is probably somewhat below the actual figure.
Closed-shop clauses are primarily found in certain sectors such as building and construction and horticulture.
23. After the general election in Denmark on 20 November 2001, the new government decided to set up a committee to look into closed-shop agreements. The mandate of the committee was to examine the scope of such clauses and other circumstances which required membership of specific associations as a precondition for access to certain professions, and also to assess the compliance of such clauses with Denmark's international commitments. The committee was also asked to draw up recommendations and proposals for initiatives which afforded greater protection of the negative right to freedom of association. The committee submitted a report in June 2002 (Betænkning nr. 1419, Udvalget om eksklusivbestemmelser) which proposed changes to the law concerning closed-shop agreements between employees' organisations and employers. The committee pointed out that general developments in society and the labour market could no longer justify, to the same extent as before, the need for closed-shop agreements, since strong and representative trade unions and organisations had now been established on the labour market. The committee further stated that the advantages relating to membership of a trade union should in themselves be strong enough reasons to be a member of a trade union. The committee considered that as closed-shop agreements only existed for a small part of the labour market, a change in the law would have only a marginal impact upon union density rates. The committee further stated that closed-shop agreements could have the effect of reducing the supply of labour, that freedom of contract on the labour market was not an immutable concept, and that restrictions existed in several fields as to the agreements that management and labour could lawfully conclude.
24. Beforehand, the committee had consulted numerous institutions, organisations and associations, among those DA, which classified closedshop agreements into the following categories:
I. Agreements concluded by an employers' association which is a (direct or indirect) member of DA.
II. Agreements concluded by an employers' association which is not affiliated to DA.
III. Agreements concluded directly between an employer and a trade union.
The classification was explained in Report no. 1419 as follows:
“Some years ago the Confederation of Danish Employers (DA) made a conservative estimate that at least 230,000 employees were covered by closedshop provisions. This figure was calculated as follows:
In businesses organised in member organisations of DA, it was estimated that at least 60,000 employees were covered by closedshop provisions. (However, this figure has diminished since the original estimate was made, so the present estimate is that about 45,000 employees within the scope of DA are covered by closedshop provisions).
In organised businesses outside the scope of DA, at least 50,000 employees were estimated to be covered by closedshop provisions.
In non-organised businesses, it was estimated that approximately 120,000 employees were covered by closedshop provisions in agreements adhering to collectivebargaining agreements.”
25. The distinction between I and II is related to the fact that DA, as stated above, has a policy of not entering into (or allowing its member organisations to enter into) closed-shop agreements. Therefore, within the scope of DA, closed-shop provisions only apply when a member organisation of DA entered into a closed-shop agreement prior to becoming a member of DA. This was explained in the report as follows:
“In principle, closedshop provisions are not entered into by the part of the private labour market which is covered by the main agreement between DA and LO. Under the Articles of Association of DA, the use of exclusivity clauses is not recognised, because such clauses are deemed to interfere with employers' managerial rights. However, this does not mean that no business within the scope of DA has any collectivebargaining agreement containing closedshop provisions. Thus, it is estimated by DA that at least 45,000 employees working in businesses organised in member organisations of DA are covered by closedshop provisions.
When a member organisation enters into a collectivebargaining agreement, this must be subject to the approval of DA. The same principle applies when members of the member organisations enter into collectivebargaining agreements themselves. If a member organisation or the members of a member organisation intend to enter into negotiations for collectivebargaining agreements which include closedshop provisions, this requires the prior consent of the board of DA. DA does not approve of collectivebargaining agreements which contain exclusivity clauses.
However, if, at the time of applying for admission to one of DA's member organisations, a business is party to a collectivebargaining agreement which includes closedshop provisions, this does not debar the business from membership of the organisation. In such cases the organisation will subsequently try to release the business from the exclusivity clause. The same applies if an organisation seeks admission to DA.”
26. The committee's consultation with SALA (the Danish Confederation of Employers' Associations in Agriculture) was described as follows in Report no. 1419:
“SALA stated that, in general, it would like to see exclusivity agreements abolished, and that such agreements are felt to be constrictive even though it acknowledges the value of having large organisations to negotiate with. SALA said that, while the industrial part of the organisation is more or less exempt from exclusivity agreements, these agreements are a large problem for the areas of agriculture, forestry, market gardening and horticulture. The Employers' Association of Agriculture and Forestry said that the whole market garden area is covered by closedshop provisions, and argued for changes in all negotiations for collective-bargaining agreements. SID consistently states that there is no price at which the clauses could be eliminated from collectivebargaining agreements, so the question is not open to negotiation. In the market garden area the exclusivity agreements result in a decrease in the number of applicants for apprenticeships, recruitment problems and problems in hiring seasonal workers. In other areas within agriculture and forestry it is also the case that exclusivity agreements are not 'for sale'.
The Employers' Association of Danish Landscape Gardeners said that it has four collectivebargaining agreements which include exclusivity clauses; however, the agreement covering golf courses only includes a preference clause. Despite the fact that the employers recognise the interest in having properly regulated labour relations, exclusivity agreements cause recruitment problems and have a side effect of leading to other forms of provision of services, for example, by sub-contractor arrangements and the like ...
In reply to a question of the committee, it was stated that the number of employees covered by exclusivity agreements in SALA's area is around 25,000.”
27. Subsequently, on 9 January 2003, a bill (no. 2002-03-L120) to amend the Protection against Dismissal due to Association Membership Act was tabled in Parliament by the Minister for Employment. The bill was aimed at ensuring, among other things, that in the future no agreements could be lawfully concluded which imposed a duty on an employer to employ exclusively or, preferably, persons who were members of an association or a specific association.
28. The explanatory memorandum on the bill stated, inter alia:
“Closed-shop agreements are obsolete and out of step with the wishes of many employees. The government consider that there should be freedom for an employee to decide whether to become a member of an association – just as there should be freedom to choose not to become a member of an association – without this leading to a risk of not being recruited or of being dismissed. The government do not consider it reasonable that an employer may lay down requirements as to the candidate's membership or non-membership of an association as a condition for obtaining or keeping a job. Furthermore, the government find it unreasonable that a clause in a collective agreement may prevent an employee who does not wish to be a member of an association or a specific association from obtaining or keeping employment with an employer or may prevent an employer from considering the candidate's qualifications alone. ...
The bill does not entail any economic or administrative consequences for public authorities ... the bill does not lead to any financial and administrative consequences of any major significance for enterprises. The proposal could even lead to an easing of procedures for the recruitment of labour as employers will no longer have to take candidates' union affiliation into account after the commencement of the Act ... the bill has no consequences for gender equality on the labour market ... the bill does not contain any Community law aspects ...”
29. In accordance with the Danish Constitution, a bill is read three times before it is adopted. At the first reading, the bill is discussed in general and thereafter, normally, the bill is referred to a committee, which examines the proposal and is free to put questions to the relevant minister. With regard to the bill in question, on 6 February 2003 the Parliamentary Committee on Employment (Arbejdsmarkedsudvalget) submitted various questions to the Minister for Employment. As regards two questions (nos. 7 and 8) the latter replied as follows:
“The Minister is requested to explain the impact of the proposed bill in relation to the scope for trade unions to enforce collectivebargaining agreements, especially in relation to non-organised employers. It appears from the annual reports of the Labour Court for the years 1999 and 2000 that during the years in question, 600 and 646 cases respectively were conducted against non-organised employers, which correspond to 77% and 82% respectively of the cases in the Labour Court instigated by employees in those years. All these cases were instigated by LO ... It is the opinion of LO that the removal of closed-shop provisions will to a large extent make the efficient enforcement of collectivebargaining agreements against such employers more difficult.”
“I find it difficult to see how the annulment of closed-shop provisions in collectivebargaining agreements with non-organised employers, which is estimated to cover around 120,000 employees, should make it more difficult for the organisations to secure the efficient enforcement of collectivebargaining agreements. First and foremost the annulment of a closed-shop provision in a collectivebargaining agreement with a non-organised employer would not change the fact that the collectivebargaining agreement is still valid and must be complied with. That means that the employees or their representatives would still have the possibility of bringing to the attention of the union in question any problems in getting the agreement complied with. The possibilities for the trade union to take action in such a case would therefore be unaffected. If there is a problem in having the terms in a collectivebargaining agreement complied with in a business, due to the fact that the trade union does not have any members in that business, that should be reason enough for the employees to join the trade union and get the trade union to complain of the lack of compliance.
I do not believe that a trade union will get much help in enforcing a collectivebargaining agreement from employees whose membership is not voluntary.
I do believe that if a trade union makes an effort and spreads the message to all the employees in a business covered by a collectivebargaining agreement that it is due to its efforts that there are orderly conditions in the business, some of those employees that are involuntary members today could become voluntary members, and all employees could then stand together to secure compliance with the collective-bargaining agreement.”
“Under Danish collective-labour law, an employer must comply with the terms of a collective agreement in respect of all employees doing work within the field of the collective-bargaining agreement. Does the Minister believe that it is fair that nonorganised employees should, in this way, enjoy benefits to which they have not contributed, and which have been obtained for them by the trade unions?”
“The principle that a collectivebargaining agreement also applies in relation to the work performed by non-organised employees in a business covered by a collectivebargaining agreement, is a principle which also applies to areas without closedshop provisions. It is a principle which follows from collectivebargaining agreements themselves, and it is only the organisation which is a party to the collectivebargaining agreement which may raise a claim, not the individual (non-organised) employee.
Furthermore, there is nothing to prevent a collectivebargaining agreement only covering the members of the organisation which is a party to the agreement. I must therefore note that it is the trade unions themselves that have elected to follow this principle both in fields with and without closed-shop provisions. Whether this is fair or not, I will leave to the trade unions in question and to their members to consider.”
30. Before the Parliamentary Committee on Employment on 12 March 2003, the Association of Employers in Gardening (that is to say, the employers' association which has a closedshop agreement with SID affecting the applicant Rasmussen) and the Danish Landscape Gardeners Employers' Association made the following joint submission:
“Both the Association of Employers in Gardening and Danish Landscape Gardeners are parties to collective agreements with SID, pursuant to which the employers agree only to employ members of SID.
This provision was agreed more than forty years ago and it is not clear why this was done. Thus, it is not apparent whether it was a mutual deal or whether it was the result of a strong trade union imposing the provision on a group of small employers.
Briefly, the provision entails a number of drawbacks for Danish gardening of which the following may be mentioned:
● It is difficult to get an inflow of apprentices to the trade. We need around 500 apprentices per year, but can only attract around 200. The closed-shop provision scares away young people. At the same time we have difficulty in securing qualified labour, since many capable employees do not want to work under an exclusivity agreement. Some of these may then try to circumvent the provision by establishing a relationship as a sub-contractor instead of as an actual employee.
● The business of market gardening is characterised by seasonal work. Every year we need summer holiday casual workers, workers to pick vegetables, workers for Christmas production and the like. Typically, we are speaking of young students who would like to work for a few months – until the closedshop provision is mentioned.
● Danish market gardens are in a very tough competitive situation in the European Union. No other country in the Union has closed-shop provisions similar to those for Danish gardeners. Therefore, there is unequal competition at European Union level.
● Closedshop provisions may be an instrument for securing wages and employment terms in small, non-organised businesses. Danish market gardens are very large businesses (20-250 employees per business) and more than 90% are organised. The closed-shop provision has therefore been overtaken by the structural development of the business. In relation to businesses under the DA, the trade union movement accepts that the closedshop provisions are unnecessary; see the article in SID's periodical.
● Danish market gardens are organised, from a business point of view, in the same way as Danish agriculture. The businesses in agriculture are not covered by closedshop provisions, and Danish market gardens should not be either.
● The closedshop agreement with SID causes daily problems with employees who are members of other trade unions or who wish to join other unions. For example, it frustrates the desire of employees to be transferred to the Danish Association for Managers and Executives, to an organisation of artisans or to another unemployment fund.
● As a labour-intensive export and home market business we need to attract the most competent workforce to Danish market gardens to maintain and expand our markets. The maintenance of the closedshop provision will inhibit our development, and the most competent employees elect for other professions.
● The collectivebargaining agreements between the Association of Employers in Gardening and Danish Landscape Gardeners respectively and SID will continue to apply for our employees (and be complied with), even if the closedshop provision is removed by law. The removal of the closed-shop provision would therefore not cause wage-dumping.
● The introduction of closedshop provisions was not put in place as an equal deal, where both parties gained something. It does not appear anywhere that Danish market gardeners have received any compensation from SID for agreeing in the past to the closedshop provision. On the contrary, it is our opinion that the employers were forced to enter into the exclusivity agreement under strong pressure and the threat of industrial action.
● In the last many negotiations for collectivebargaining agreements we have tried to persuade SID to drop the exclusivity agreements. In these negotiations it has not been possible to buy ourselves out of the exclusivity agreement. SID has not even wanted to discuss the problem seriously.
Closedshop agreements do not belong in a modern society. The individual citizen wants to make his own decisions about his relationship to the trade union movement, and must be expected to be able to do so rationally.
Closedshop provisions arose at the end of the nineteenth century in a period when industrial action was the order of the day.
Circumstances are now quite different, so closedshop provisions should be removed by law. This would not be State interference with the right of free negotiation on the labour market, but the necessary safeguarding of freedom of association.
We therefore strongly recommend that the closedshop provisions be removed by law.”
31. At the beginning of May 2003 it became clear that the bill had failed to secure the necessary majority in Parliament and it was withdrawn. It was tabled anew (no. 2004-05-L48) in December 2004 and dealt with by Parliament in January 2005 (before the general election on 8 February 2005), again with the result that the majority was not in favour of changing the law.
32. During the proceedings before the Court, the parties have submitted further information about the extension of closed-shop agreements in the gardening and horticultural sector.
The Government noted by way of introduction that no single source of statistical information was able to provide a complete picture and the various statistical sources were not immediately comparable. On the basis of the material available, however, the Government estimated that the total number of employed in the gardening and horticultural sector amounted to at least 20,800 persons. The relevant employers' organisations in the private sector had reported that around 11,000 persons were covered by closed-shop agreements, whereas the relevant trade unions had reported that 8,100 persons were covered. Thus, the Government estimated that less than 53% but more than 39% of persons were covered by closedshop agreements.
The applicant Rasmussen submitted that the Government's calculation was misleading and irrelevant to an assessment of the possibility of him finding a job which was not covered by a closedshop agreement. He stressed that there were three different kinds of gardeners: landscape gardeners; greenhouse gardeners; and production gardeners. It was crucial to distinguish among the three kinds of gardening because job opportunities in the public sector almost exclusively related to landscape gardeners. Moreover, although the applicant Rasmussen possessed the qualifications to obtain a job at a nursery, this did not imply that he would be qualified to work in landscape gardening – be it in the public or private sector. A calculation should be made in respect of each of the three kinds of gardening. The percentages for greenhouse gardening and production gardening would then be seen to be higher, probably 80% (11,000 employees covered by closed-shop provisions out of 13,700 in the three kinds of gardening in the private sector). Consequently, the percentage would be lower in respect of landscape gardeners. Accordingly, even if the Government were correct in stating that approximately every second job was not covered by closedshop agreements, it would be more pertinent to say that in the case of the applicant Rasmussen, only one out of five relevant jobs was not covered by a closedshop agreement.
33. The preparatory notes on Article 11 of the Convention (Report of 19 June 1950 of the Conference of Senior Officials, Collected edition of the “travaux préparatoires”, vol. IV, p. 262) state, inter alia:
“On account of the difficulties raised by the 'closed shop system' in certain countries, the Conference in this connection considered it undesirable to introduce into the Convention a rule under which 'no one may be compelled to belong to an association' which features in [Article 20 § 2] of the United Nations Universal Declaration.”
34. It appears that among the member States of the Council of Europe, only a very limited number of States, including Denmark and Iceland, permit by law pre-entry closed-shop agreements in general or in certain sectors. Such agreements refer to the obligation to join a trade union at the time of taking up a contract of employment as opposed to the situation in which a similar obligation is imposed after recruitment (post-entry closed-shop agreements).
35. Article 5 of the European Social Charter provides for the following “right to organise”:
“With a view to ensuring or promoting the freedom of workers and employers to form local, national or international organisations for the protection of their economic and social interests and to join those organisations, the Contracting Parties undertake that national law shall not be such as to impair, nor shall it be so applied as to impair, this freedom. The extent to which the guarantees provided for in this Article shall apply to the police shall be determined by national laws or regulations. The principle governing the application to the members of the armed forces of these guarantees and the extent to which they shall apply to persons in this category shall equally be determined by national laws or regulations.”
In its Conclusions XIV-1 and XV-1, the European Committee of Social Rights found that the Protection against Dismissal due to Association Membership Act infringed Article 5 of the European Social Charter in that an employee could be dismissed if, prior to recruitment, he or she knew that membership of a certain union was a condition for being employed with the enterprise (section 2, subsections (2) and (3), of the Act). On this basis, the Governmental Committee of the Social Charter in its 14th (1999) and 15th (2000) reports proposed that the Committee of Ministers adopt a recommendation to that end with regard to Denmark. On 7 February 2001, at the 740th meeting of the Ministers' Deputies, the proposal for the recommendation was not adopted as the requisite majority was not obtained.
In its Conclusions XVI-1, the European Committee of Social Rights stated, inter alia:
“The situation in Denmark is not in conformity with Article 5 of the Charter for the following reasons:
Closed-shop clauses are permitted in national law as illustrated by the decisions of the Danish Supreme Court summarised in the report. Clauses or practices of this kind violate the right to freedom of association; ...”
Subsequently, in September 2002 the Danish government informed the Governmental Committee of the European Social Charter of their intention to introduce a bill prohibiting closedshop agreements (see paragraph 23 above). The Governmental Committee therefore decided to await the next assessment by the European Committee of Social Rights.
In its Conclusions XVII-1 of March 2004, the European Committee of Social Rights again maintained that the aforementioned Act infringed Article 5 of the European Social Charter. In this connection, the following views were expressed within the Governmental Committee, according to the report of its 106th meeting (1114 May 2004):
“1. The Danish delegate said that once the parliamentary situation was more favourable the Government would resubmit the draft legislation. A case was also pending before the European Court of Human Rights.
2. The Portuguese delegate, supported by the Icelandic delegate, thought that under these circumstances Denmark should be given time to remedy the violation.
3. However, the Maltese delegate thought that the Governmental Committee should express its concern that nothing had been done to rectify the situation.
4. The Committee noted that it was firmly opposed to closed-shop clauses in any form and insisted that the violation of the Charter be remedied.”
The Conclusions of the next assessment by the European Committee of Social Rights on Article 5 in respect of Denmark are expected to be published in the first half of 2006.
36. Recently, in Confederation of Swedish Enterprise against Sweden (Collective Complaint no. 12/2002), the European Committee of Social Rights found that the situation in Sweden as regards pre-entry closedshop clauses infringed Article 5 of the Revised European Social Charter. On the basis of the report by the European Committee of Social Rights, the Committee of Ministers, at the 853rd meeting of the Ministers' Deputies on 24 September 2003, adopted a resolution (ResChS(2003)1) taking note of the Swedish government's undertaking to bring the situation into conformity with the Revised Social Charter.
37. The Community Charter of the Fundamental Social Rights of Workers, adopted by the heads of State or government of eleven member States of the European Communities on 9 December 1989, provides that every employer and every worker has the freedom to join or not to join professional organisations or trade unions without any personal or occupational damage being thereby suffered by them.
The relevant parts of the Charter of Fundamental Rights of the European Union, proclaimed in Nice on 7 December 2000 (2000/C 364/01), read:
“1. Everyone has the right to freedom of peaceful assembly and to freedom of association at all levels, in particular in political, trade union and civic matters, which implies the right of everyone to form and to join trade unions for the protection of his or her interests.
2. Political parties at Union level contribute to expressing the political will of the citizens of the Union.”
“Nothing in this Charter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognised, in their respective fields of application, by Union law and international law and by international agreements to which the Union, the Community or all the Member States are party, including the European Convention for the Protection of Human Rights and Fundamental Freedoms, and by the Member States' constitutions.”
38. Conventions nos. 87 and 98 of the International Labour Organisation (ILO) protect, inter alia, the positive aspects of freedom of association. As regards the issue of closed-shop agreements, the ILO considers this to be a matter for regulation at national level.
VIOLATED_ARTICLES: 11


ITEMID: 001-107165
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF RICHERT v. POLAND
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient
JUDGES: George Nicolaou;Lech Garlicki;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 5. The applicant was born in 1972.
6. On an unspecified date in 2004 the Gdańsk Regional Prosecutor lodged a bill of indictment against the applicant and other persons with the Gdańsk Regional Court. The applicant was charged with attempted murder committed in the context of organised crime.
7. On 20 August 2004 the Criminal Division of the Gdańsk Regional Court requested the President of that court for the secondment of a judge from the district court, L.M., to the bench appointed to examine the applicant’s case. The following dates for hearings to be held were specified in that letter: 26 October, and 16 and 23 November 2004.
8. By a letter of the President of the Regional Court, dated 23 August 2004, the judge was seconded for the purpose of attending the three hearings requested. The letter referred to the agreement of the board of the assembly of the Regional Court’s judges to the secondment which had been given on an unspecified date.
9. Subsequently, hearings in the applicant’s case were held on these first three dates and then later on 14 December 2004, 25 January, 3 and 15 March, 14 and 19 April, 19 May, 17 June, 12 July and 3 October 2005.
10. By a letter of 10 October 2005 the President of the Criminal Division of the Regional Court requested the President of that court to clarify the terms of Judge L.M.’s secondment, referring to certain doubts as to the time frame within which it was valid. He requested clarification on whether she had been seconded only for the three dates specified in the secondment letter of 23 August 2004 or for the whole examination of the case, until the firstinstance judgment.
11. In his reply of 11 October 2005 the President of the Regional Court stated that Judge L.M. had been seconded with effect from 26 October 2004 until a first-instance judgment was given in the case.
12. On 12 October 2005 the President of the Criminal Division of the Gdańsk Regional Court asked the President of that court to second Judge L.M. to the case for a hearing to be held on 3 November 2005. His request was granted by the President’s letter of 13 October 2005, specifically referring to that date.
13. On 26 October 2006 the President of the Criminal Division of the Gdańsk Regional Court stated in a letter to the President of that court that Judge L.M.’s original secondment had covered the hearings held on: 26 October, 16 and 23 November 2003, 14 December 2004, 25 January, 3 and 15 March, 14 and 19 April, 19 May, 17 June, 12 July and 3 October 2005.
14. Subsequently, there was a change of practice concerning the secondment, in that Judge L.M. was seconded by separate letters of 4 and 14 November 2005 for hearings to be held on 10 and 16 November 2005 respectively.
15. On the latter date the court gave a judgment and found the applicant guilty of attempted murder.
16. The applicant appealed, complaining essentially about various aspects of the admissibility and assessment of the evidence by the first-instance court.
17. On 11 October 2006 the Gdańsk Court of Appeal partly upheld and partly amended the contested judgment.
18. The applicant lodged a cassation appeal with the Supreme Court.
19. In additional pleadings of 6 August 2007 he raised another ground for appeal. He drew the Supreme Court’s attention to the doubts which had arisen during the proceedings as to the correctness of the procedure concerning the secondment of Judge L.M., its time frame and its compliance with the requirements of section 77 of the Law on the Structure of Courts of Law as to the procedural requirements that a secondment had to meet. He argued that it was necessary to examine whether his case had been examined by a tribunal established by law. He indicated that he could not substantiate this ground with further details based on a closer examination of the case file because it had already been forwarded to the Supreme Court.
20. By a decision of 20 September 2007 the Supreme Court dismissed the appeal. The operative part of the decision read:
“1) dismisses the cassation appeal as manifestly ill-founded,
2) holds that the court costs of the cassation proceedings be borne by the appellant.”
That decision contained no written grounds.
21. Article 180 §§ 1 and 2 of the Constitution reads:
“1. Judges shall not be removable.
2. The removal of a judge from office, suspension from office, or the assigning of a judge to another bench or position against his will may only occur by virtue of a court judgment and only in situations prescribed in a statute. “
22. Section 77(1) of the Law on the Structure of Courts of Law (Prawo o ustroju sądów powszechnych) provides that the Minister of Justice may second a judge to carry out his or her duties in another court. Furthermore, under subsection 8 of that section, the president of a regional court is also empowered to second a judge of a district court to sit on a bench of a regional court for a period not longer than thirty days per year, provided that the board of the regional court’s assembly of judges gives its consent.
Section 24 of that Law provides that no more than one judge seconded from another court can sit on a bench of a court at any one time.
23. The Supreme Court has examined in a number of judgments the procedural arrangements for the secondment of a judge to sit on the bench of another court.
24. In its decision of 21 November 2001 (I KZP 28/01) it examined a situation where two judges of a district court were promoted to a regional court during proceedings pending before the district court. They continued to participate in the proceedings until the first-instance judgment was given. It held that it had been in breach of section 24 of the Law on the Structure of Courts of Law and the prohibition that only one judge seconded from another court could sit on a bench (see paragraph 22 above). A district-court bench comprising two judges promoted to a higher court during the proceedings, if formal and individual decisions on their secondment had been given, was not properly composed within the meaning of Article 439 § 1 item 2 of the Code of Criminal Procedure (see paragraph 30 below).
The court observed that the procedural shortcomings listed in Article 439 § 1 of the Code breached the fundamental principles of a fair hearing, setting minimal procedural standards for the rule of law in a democratic State. If such shortcomings occurred, they always resulted in the judgment on the merits of the case being quashed, regardless of whether they had any influence on the substantive outcome of the proceedings and even where they had not been raised by the appellant. Certain legal writers were of the view that the legislator had put in operation a presumption that such shortcomings always had an impact on the merits of a case.
The court observed that one of the fundamental principles of the administration of justice was that a judge was to carry out his or her function in a given court determined in the nomination act issued by the President. However, the laws governing judicial organisation allowed for judges to be assigned to another court with a view to carrying out their judicial duties for limited periods of time and with their consent. For a judge to be able to sit on a bench of another court, at either a higher, lower or the same level of jurisdiction, a formal decision on secondment was necessary. Such a decision was not of a merely organisational character; it conferred a judicial role on a judge sitting on that bench.
25. In a resolution of 26 September 2002 (I KZP 28/2002) the Supreme Court held that a judge could be seconded to sit on a bench of another court either for a period of thirty consecutive days in one year, or for thirty non-consecutive days, for example, the dates of hearings. It noted that there were discrepancies in the practice. Certain presidents of the courts were of the view that only the first approach was correct, while others maintained that it was also acceptable to second judges for successive hearings in a case examined by another court, held on non-consecutive days if their number did not exceed thirty per year. The court held that it was improper to second a judge without concrete dates indicated in the secondment decision, or merely for the examination of a specified case, if such a secondment did not refer to concrete dates.
26. In its judgment of 1 October 2002 (V KK 114/02) the Supreme Court examined a situation where a judge had obtained secondment for a specified period to sit on a bench of another court and had continued to do so after that period had ended, in the absence of a new decision on his secondment. It held that only a decision to second a judge to another court made it possible for him or her to sit on a bench of another court. In the absence of such a decision the composition of the court had been incorrect, within the meaning of Article 439 of the Code of Criminal Procedure. This procedural shortcoming amounted to a flagrant breach of the minimum standards of a fair hearing (“rażąca obraza minimalnego standardu prawidłowego postępowania”). The court referred to the resolution of 21 November 2001 (see paragraph 24 above).
27. In a judgment of 22 August 2007 (II KK 197/07) the Supreme Court held that the assignment of a judge to another bench did not comply with the applicable legal requirements if the local board of the assembly of judges had given only a blanket agreement for all judges of that court to be seconded to other courts. That agreement had to be given on each and every occasion in respect of an individual judge.
28. In an interlocutory decision of 19 September 2006 (III KO 21/06) the Supreme Court held that a decision on a judge’s secondment had not been issued correctly if it lacked an indication of the concrete dates of hearings or other measures in which a seconded judge was to participate. It further noted that such a shortcoming did not render the proceedings void within the meaning of Article 439 of the Code of Criminal Procedure. The court reiterated that a judge could not be assigned to a bench of another court for more than thirty days during one year.
29. Under the 1997 Code of Criminal Procedure (“the Code”), which entered into force on 1 September 1998, a party to criminal proceedings can lodge an appeal with the Supreme Court against any final decision of an appellate court which had terminated criminal proceedings. The relevant part of Article 523 § 1 of the Code provides:
“A cassation appeal may be lodged only on the grounds referred to in Article 439 [these include a number of fundamental procedural irregularities, such as incorrect composition of the trial court; lack of legal assistance in cases where such assistance was compulsory; breach of the rules governing jurisdiction in criminal matters; trying a person in absentia in cases where his presence was obligatory and thus depriving him of an opportunity to defend himself, etc.] or on the ground of another flagrant breach of law provided that the judicial decision in question was affected as a result of that breach. A cassation appeal shall not lie against the severity of the penalty imposed (niewspółmierności kary).”
30. Article 439 of the Code, in so far as relevant, reads:
“The appellate court shall, regardless of the scope of the appeal and the grounds raised by the party and regardless of whether the procedural shortcoming has had any impact on the substance of a decision, set a decision aside if: ...
(2) the composition of the court was improper;”
Under Article 518 of the Code, Article 439 is applicable mutatis mutandis in the cassation proceedings.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-70182
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF KARAYİĞİT v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 3;Violation of Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings
TEXT: 8. The applicant was born in 1979 and lives in Istanbul.
9. On 6 February 1999 the applicant was arrested and taken into police custody by police officers from the Anti-Terror Branch of the Istanbul Security Directorate on suspicion of his membership of an illegal organisation, namely the PKK (the Workers’ Party of Kurdistan).
10. On the same day the public prosecutor granted the request of the Anti-Terror Branch to place the applicant in police custody for four days at the Anti-Terror Branch of the Istanbul Security Directorate.
11. On 10 February 1999 the Istanbul State Security Court extended the custody period for a further two days.
12. On 10 February 1999 the applicant was taken to Haseki Hospital, where he was issued with a medical report. In the report ‘surface erythema and scrapes on the proximal part of both arms’ were noted. On the same day the applicant was allegedly forced to sign a statement explaining that the bruises on his arms had been caused by a dust allergy.
13. On 12 February 1999 the applicant was brought before the public prosecutor of the Istanbul State Security Court and then before a judge at the Istanbul State Security Court, where he stated that he had been subjected to physical and emotional violence. The court ordered the applicant’s detention on remand.
14. On the same day, a doctor at the Forensic Medical Institute of the Istanbul State Security Court examined the applicant and reported bruises of 3040 cm x 7-8 cm on both upper arms and an ecchymose under his left arm joint, as well as a complaint of backache. In the report, it was also noted that the signs of physical violence were sufficient to prevent the applicant from working for three days.
15. On 16 February 1999 the public prosecutor of the Istanbul State Security Court filed a bill of indictment, charging the applicant with the criminal offence of being a member of an illegal organisation described in Article 168 § 2 of the Criminal Code and section 5 of the Prevention of Terrorism Act (Law no. 3713).
16. At the first hearing of 27 April 1999 the applicant repeated his allegation of ill-treatment before the Istanbul State Security Court. He also requested an allergy test and an examination of his signature. The court rejected his requests.
17. On 13 August 1999 the applicant was able to consult a dermatologist, who examined the applicant and found no indication of any allergies.
18. On 29 April 1999 the public prosecutor filed an indictment with the Istanbul Assize Court, charging the two police officers whose signatures were on the applicant’s statement made in custody with a criminal offence proscribed by Article 243 of the Criminal Code. In his indictment the public prosecutor cited the two medical reports drawn up in respect of the applicant, which mentioned the bruises on his arms.
19. On 3 May 1999 the Assize Court ordered that a letter be sent to the applicant inviting him to take part in the proceedings.
20. At the hearings on 23 June and 23 September 1999, the court issued bench warrants for the applicant in order to consider his testimony as a witness. The responses to these warrants from the local authorities revealed that the applicant was detained in Üsküdar E Type Prison.
21. At the hearings on 30 November and 14 December 1999, the court ordered that written notifications be sent to Üsküdar Prison in order to secure the presence of the applicant before the court.
22. The prison administration informed the court that the applicant had refused to attend the hearings and provided letters to this effect. These documents did not bear the applicant’s signature.
23. On 30 December 1999 the Assize Court heard the defendant police officers. It took note of the documents sent by the prison administration, and subsequently dispensed with the applicant’s testimony on the grounds that the applicant had chosen not to attend the hearing, and that taking his testimony would not affect the verdict. The court further stated that the applicant had not brought a specific complaint regarding his allegations; the criminal proceedings were instituted by the public prosecutor on his own initiative based upon the information he had obtained from the State Security Court. It took note of the applicant’s previous statements and acquitted the police officers of the offence on account of a lack of evidence.
24. On 8 May 2000 the applicant filed another complaint with the Fatih Public Prosecutor’s Office against the same police officers.
25. On 9 May 2000 the Public Prosecutor’s Office issued a decision of non-prosecution, referring to the trial that had already been held before the Istanbul Assize Court.
26. A description of the relevant domestic law at the material time can be found in Batı and others v. Turkey (nos. 33097/96 and 57834/00, §§ 96100, 3 June 2004).
VIOLATED_ARTICLES: 13
3


ITEMID: 001-92611
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF KULIKOWSKI v. POLAND
IMPORTANCE: 2
CONCLUSION: Remainder inadmissible;Violation of Art. 5-3;Violation of Art. 6-1+6-3-c;Non-pecuniary damage - award
JUDGES: Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: 6. The applicant was born in 1964. He is currently serving a prison sentence.
7. On 22 March 2000 the applicant was arrested. On 24 March 2000 he was remanded in custody by the Gliwice District Court (Sąd Rejonowy) on suspicion that he had killed his mother. His pretrial detention was subsequently extended by the Katowice Regional Court (Sąd Okręgowy) on 19 June 2000, by the Katowice Court of Appeal (Sąd Apelacyjny) on 6 September 2000, by decisions of the Gliwice Regional Court of 5 March and 13 July 2001, and by decisions of the Katowice Court of Appeal of 13 March, 29 May, 10 July and 28 August 2002.
8. The domestic courts justified the applicant’s pretrial detention in its initial phase by the existence of strong evidence against him and the likelihood that a severe penalty would be imposed, as well as by the need to secure the proper course of the proceedings. During that time, an autopsy, a number of unspecified biological tests and an inspection of the crime scene were carried out. At the later stage of the applicant’s detention, the authorities referred to the severity of the sentence likely to be imposed on him. In addition, they emphasised that the investigation could not be completed for reasons beyond the prosecutor’s control, namely delays in obtaining expert reports and in viewing the applicant’s testimony recorded on video tape.
9. From 17 December 2001 until 2 January 2002 the applicant was concurrently serving a sentence of sixteen days’ imprisonment, imposed on an unspecified date by the Zabrze District Court in another criminal case.
10. The applicant’s minor sons and his wife were witnesses in the investigation. In May 2002 the prosecutor decided that a psychologist should be present when the younger son was to be interviewed by the prosecution. Apparently the older son was also interviewed by the prosecutor on an unspecified date. The applicant submitted that his wife and two sons were not allowed, for an unspecified period, to communicate with him in writing or to visit him in prison. The prosecution relied on Article 217 of the Code of Execution of Criminal Sentences (see paragraph 30 below).
11. The applicant was indicted on 20 November 2000. In the proceedings before the first- and second-instance courts he was represented by a legal-aid lawyer.
12. On 14 August 2002 the Gliwice Regional Court convicted the applicant of murder and sentenced him to twelve years’ imprisonment.
13. On 19 December 2002 the Katowice Court of Appeal upheld that judgment. A copy of the judgment was served on the applicant on 17 January 2003.
14. On 21 February 2003 the Katowice Court of Appeal appointed a legalaid lawyer for the purposes of the cassation proceedings.
15. A copy of the judgment of 19 December 2002 was served on the legal-aid lawyer on 3 March 2003.
16. By a letter of 20 March 2003 the lawyer informed the Katowice Court of Appeal that, in her opinion, a cassation appeal in the applicant’s case lacked prospects of success and that she therefore refused to prepare and lodge one with the Supreme Court. By a letter of 27 March 2003 the Katowice Court of Appeal informed the applicant of the lawyer’s refusal and, further, that no other legal-aid lawyer would be appointed for the purpose of lodging a cassation appeal in his case.
17. The court’s letter was served on the applicant by the prison administration on 1 April 2003.
18. The relevant domestic law and practice concerning the imposition of detention on remand (aresztowanie tymczasowe), the grounds for its extension, release from detention and rules governing other, so-called “preventive measures” (środki zapobiegawcze) are stated in the Court’s judgments in the cases of Gołek v. Poland, no. 31330/02, §§ 27-33, 25 April 2006 and Celejewski v. Poland, no. 17584/04, §§ 22-23, 4 August 2006.
19. Under the Law of 6 June 1997 - Code of Criminal Procedure (“the Code”), which entered into force on 1 September 1998, a party to criminal proceedings can lodge a cassation appeal with the Supreme Court against any final decision of an appellate court which had terminated criminal proceedings. The cassation appeal has to be lodged and signed by an advocate, on pain of being declared inadmissible. The relevant part of Article 523 § 1 of the Code provides:
“A cassation appeal may be lodged only on the grounds referred to in Article 439 [these include a number of procedural irregularities, such as, for instance, incorrect composition of the trial court; lack of legal assistance in cases where such assistance was compulsory; breach of the rules governing jurisdiction in criminal matters; trying a person in absentia in cases where his presence was obligatory and thus depriving him of an opportunity to defend himself, etc.] or on the ground of another flagrant breach of law provided that the judicial decision in question was affected as a result of that breach. A cassation appeal shall not lie against the severity of the penalty imposed (niewspółmierności kary).”
20. Pursuant to Article 524 § 1 of the Code, a cassation appeal has to be lodged with the appellate court competent to carry out an initial examination of its admissibility within thirty days from the date of service of the judgment of the appellate court with its written grounds on the party or, if the party has been represented, on his or her lawyer.
21. Under Article 83 of the Code, an accused may appoint a lawyer to represent him or her in criminal proceedings. If he or she cannot afford lawyers’ fees, a request for legal aid may be made under Article 78 of the Code.
22. A grant of legal aid expires upon a judgment of an appellate court. A new decision on legal aid has to be made if the convicted person wishes to institute further proceedings in order to lodge a cassation appeal with the Supreme Court. The relevant part of Article 84 § 3 of the Code provides:
“A defence counsel appointed under the legalaid scheme in the cassation proceedings ... shall prepare and sign a cassation appeal ... or shall inform the court, in writing, that he or she has not found any grounds for lodging a cassation appeal ... If a cassation appeal ... is lodged, the defence counsel is entitled to represent the defendant in the subsequent proceedings.”
23. In its decision of 17 June 1997 (V KX 57/97, OSNKW 1997/9010/82) the Supreme Court stated that cassation proceedings had a special character in that the judgment essentially became final after it had been upheld by the appellate court. Bearing in mind the special character of these proceedings, the court was of the view that at this stage the mere fact that the convicted person was granted legal aid was sufficient to ensure an effective exercise of his or her defence rights. It was the lawyer’s task to analyse the case and establish whether there were grounds on which to lodge a cassation appeal against the judgment of the appellate court. If the lawyer was of the opinion that there were no grounds on which to do so, there was no legal basis in the Code of Criminal Procedure that would either oblige the lawyer to prepare such an appeal against his or her better judgment, or oblige the court to assign another lawyer to prepare such an appeal in the case.
24. In its decision of 25 March 1998 the Supreme Court stated that the refusal of a legalaid lawyer to lodge a cassation appeal did not constitute a valid ground for granting retrospective leave to lodge such an appeal by another lawyer out of time (V KZ 12/98). It confirmed this ruling in a further decision of 1 December 1999. The Supreme Court observed that the court could only assign a new legal-aid lawyer to the case if it were shown that the first lawyer had been negligent in his or her task of assessing whether a cassation appeal had any prospects of success. If this were not the case, a court was not obliged to assign a new legal-aid lawyer to represent the convicted person and its refusal was not subject to appeal (III KZ 139/99).
25. In a later decision of 1 July 1999 the Supreme Court expressed the opinion that such negligence could be proved only in disciplinary proceedings instituted against a lawyer under the provisions of the Bar Act (V KZ 33/99).
26. In its decisions of 13 March and 17 September 2002 the Supreme Court expressed the view that when a legal-aid lawyer refused to represent a convicted person before the Supreme Court, the appellate court was not obliged to assign a new lawyer to the case (II KZ 11/02, II KZ 36/02).
27. On 26 February 2002 the Supreme Court changed its previous position concerning the date from which the timelimit for lodging of a cassation appeal started to run (see paragraph 20 above). It examined a particular situation where a legal-aid lawyer had refused to represent a convicted person for the purposes of cassation proceedings, finding that a cassation appeal would offer no prospects of success. It held that in such a situation the appellate court was obliged to instruct the defendant that the time-limit for lodging a cassation appeal started to run only on the date on which the defendant was served with the lawyer’s refusal and not on the earlier date when the judgment of the appellate court was served on the defendant himself. It stated that it was not open to doubt that a defendant faced with the legal-aid lawyer’s refusal had a right to take other measures to seek legal assistance necessary for an effective lodging of a cassation appeal (III KZ 87/01). The Supreme Court reiterated its position in a decision of 6 May 2008 and in a number of similar decisions given in 2008. It observed that there had been certain discrepancies in the judicial practice as to the manner in which the time-limit in such situations was calculated, but the strand of the case-law launched by the decision given in February 2002 was both dominant and correct, and also accepted by doctrine as providing to the defendants adequate procedural guarantees of access to the Supreme Court within a reasonable time-frame (II KZ 16/08).
28. Rules relating to means of controlling correspondence of persons involved in criminal proceedings are set out in the Code of Execution of Criminal Sentences (Kodeks karny wykonawczy) (“the 1997 Code”) which entered into force on 1 September 1998.
29. Article 214 § 1 reads as follows:
“Unless exceptions are provided for in the present Chapter, a detainee shall enjoy at least the same rights as those secured to a convicted person serving a sentence of imprisonment under the ordinary regime in a closed prison. No restrictions shall be applied to him except such as are necessary to secure the proper conduct of criminal proceedings, to maintain order and security in a remand centre and to prevent demoralisation of detainees.”
30. Article 217 § 1 reads, in so far as relevant, as follows:
“(...) detainee’s correspondence shall be censored by [the authority at whose disposal he remains], unless the authority decides otherwise.”
This provision further provides that a detainee is allowed to receive visitors, provided that he has obtained permission from the investigating prosecutor (at the investigative stage) or from the trial court (once the trial has begun).
31. On 1 September 1998 the Rules of Detention on Remand (Rozporządzenie Ministra Sprawiedliwości w sprawie regulaminu wykonywania tymczasowego aresztowania) entered into force. Paragraph 36 of the Rules provides:
“The detainee’s correspondence ... is dispatched through the intermediary of the authority at whose disposal he remains.”
32. In 1990, the UN adopted the Basic Principles on the Role of Lawyers (the Basic Principles). They provide, in particular:
“13. The duties of lawyers towards their clients shall include:
(a) Advising clients as to their legal rights and obligations, and as to the working of the legal system in so far as it is relevant to the legal rights and obligations of the clients;
(b) Assisting clients in every appropriate way, and taking legal action to protect their interests;
(c) Assisting clients before courts, tribunals or administrative authorities, where appropriate.
14. Lawyers, in protecting the rights of their clients and in promoting the cause of justice, shall seek to uphold human rights and fundamental freedoms recognized by national and international law and shall at all times act freely and diligently in accordance with the law and recognized standards and ethics of the legal profession.
15. Lawyers shall always loyally respect the interests of their clients.
33. A number of recommendations have been adopted by the Committee of Ministers of the Council of Europe with regard to access to justice and the provision of legal-aid services. In particular, Recommendation No. R (81) 7 on measures facilitating access to justice provides:
“4. No litigant should be prevented from being assisted by a lawyer. The compulsory recourse of a party to the services of an unnecessary plurality of lawyers for the need of a particular case is to be avoided. Where, having regard to the nature of the matter involved, it would be desirable, in order to facilitate access to justice, for an individual to put his own case before the courts, then representation by a lawyer should not be compulsory.”
“Recalling that in addition to the right of access to the law and to justice provided for in Article 6 of the European Convention on Human Rights, the other provisions of the Convention and particularly Articles 2, 3 and 8 are equally applicable to the very poor, as are the other legal instruments of the Council of Europe such as the European Social Charter;
Considering that this recommendation is intended to improve, especially with regard to the very poor, existing legal advice and legal aid systems, and therefore to complement existing machinery with regard to the other categories of people for which the systems were designed.
Recommends that the governments of member states:
1. Facilitate access to the law for the very poor (“the right to the protection of the law”) by: ...
b. promoting legal advice services for the very poor; ...
3. Facilitate effective access to the courts for the very poor, especially by the following means:
c. recognising the right to be assisted by an appropriate counsel, as far as possible of one’s choice, who will receive adequate remuneration;
e. simplifying the procedure for granting legal aid to the very poor, [...]”
“The Committee of Ministers, under the terms of Article 15.b of the Statue of the Council of Europe, [...]
Underlining the fundamental role that lawyers and professional associations of lawyers also play in ensuring the protection of human rights and fundamental freedoms; [...]
Considering that access to justice may require persons in an economically weak position to obtain the services of lawyers,
Recommends the governments of member States to take or reinforce, as the case may be, all measures they consider necessary with a view to the implementation of the principles contained in this Recommendation.
1. All necessary measures should be taken to respect, protect and promote the freedom of exercise of the profession of lawyer without discrimination and without improper interference from the authorities or the public, in particular in the light of the relevant provisions of the European Convention on Human Rights.
1. All necessary measures should be taken to ensure that all persons have effective access to legal services provided by independent lawyers,
2. Lawyers should be encouraged to provide legal services to persons in an economically weak position.
3. Governments of member States should, where appropriate to ensure effective access to justice, ensure that effective legal services are available to persons in an economically weak position, in particular to persons deprived of their liberty.
4. Lawyers’ duties towards their clients should not be affected by the fact that fees are paid wholly or in part from the public funds.”
36. On 6 June 2007 the Committee of Ministers adopted an Interim Resolution concerning the judgments of the European Court of Human Rights in 44 cases against Poland relating to the excessive length of detention on remand (“the 2007 Resolution”). Noting that the number of cases in which the European Court had found violations of Article 5 § 3 of the Convention against Poland was constantly increasing, it concluded that this revealed a structural problem. A more detailed rendition of the 2007 Resolution can be found in the Court’s judgment given in the case of Kauczor v. Poland (see Kauczor v. Poland, no. 45219/06, § 34, 3 February 2009; not final).
37. On 20 June 2007 the Council of Europe’s Commissioner for Human Rights released a Memorandum to the Polish Government concerning, among other issues, the use of the detention measure in Poland, stressing that examples of cases brought to the Court where pre-trial detention had lasted between 4 to 6 years were not uncommon. The Commissioner urged the Polish authorities to review the application and functioning of pre-trial detention in Polish law. A more detailed rendition of the relevant parts of the Memorandum can be found in the above mentioned Kauczor judgment (see Kauczor v. Poland, cited above, § 35).
VIOLATED_ARTICLES: 5
6
VIOLATED_PARAGRAPHS: 5-3
6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-c


ITEMID: 001-60751
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF LUCIANO ROSSI v. ITALY
IMPORTANCE: 4
CONCLUSION: Violation of P1-1;Violation of Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award
JUDGES: Christos Rozakis
TEXT: 8. The applicant was born in 1947 and lives in Florence.
9. The applicant is the owner of a flat in Florence, which he had let to A.R.
10. In a registered letter of 4 November 1985, the applicant informed the tenant that he intended to terminate the lease on expiry of the term on 30 June 1987 and asked her to vacate the premises by that date.
11. In a writ served on the tenant on 13 January 1987, the applicant reiterated his intention to terminate the lease and summoned the tenant to appear before the Florence Magistrate.
12. By a decision of 19 January 1987, which was made enforceable on 4 February 1987, the Florence Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 30 June 1988.
13. On 18 March 1989, the applicant made a statutory declaration that he urgently required the premises as accommodation for himself.
14. On 21 June 1989, the applicant served notice on the tenant requiring her to vacate the premises.
15. On 7 August 1989 he served notice on the tenant informing her that the order for possession would be enforced by a bailiff on 28 August 1989.
16. Between 18 September 1989 and 4 July 1996 the bailiff made 15 attempts to recover possession. Each attempt proved unsuccessful, as the applicant was never granted the assistance of the police in enforcing the order for possession.
17. On 18 September 1996, the applicant recovered possession of his flat.
18. The relevant domestic law is described in the Court's judgment in the case of Immobiliare Saffi v. Italy [GC], no. 22774/93, §§ 18-35, ECHR 1999-V.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-57422
LANGUAGEISOCODE: ENG
RESPONDENT: BEL
BRANCH: CHAMBER
DATE: 1983
DOCNAME: CASE OF ALBERT AND LE COMPTE v. BELGIUM
IMPORTANCE: 2
CONCLUSION: Violation of Art. 6-1;Just satisfaction reserved
JUDGES: C. Russo
TEXT: 8. Dr. Alfred Albert is a medical practitioner. He was born in 1908, lives at Molenbeek and is a Belgian national.
9. By letter of 9 April 1974, the Brabant Provincial Council of the Ordre des médecins (Medical Association) notified him of the opening of an enquiry regarding him; it summoned him to appear before its Bureau on 8 May to answer questions in connection with a series of certificates of unfitness for work issued by him, asking him to bring with him the medical files of the patients concerned.
The applicant appeared on the prescribed date. The Bureau of the Provincial Council informed him that he was accused of having issued spurious certificates.
On 16 May, the President of the Provincial Council sent Dr. Albert a registered letter which read:
"Dear Colleague,
The Brabant Council of the Ordre des médecins requests the honour of your appearance before it on Tuesday, 4 June 1974 at 8.30 p.m., 32 Place de Jamblinne de Meux, in order to present your defence in connection with the following complaint, namely that of
- having issued various certificates of unfitness for work, in particular:
on 26.12.1973 to B..., on 7.1.1974 to T..., on 9.1.1974 to A...,
without having satisfied yourself in a strict manner, by means of a sufficiently thorough examination, of the justification of the unfitness for work and while not possessing any medical record in relation to these patients,
these facts having compromised the reputation, probity and dignity of the medical profession.
The case-file concerning you may be consulted at the Council’s office on any working day from 9.00 a.m. until 11.30 a.m., and from 2.00 p.m. 5.00 p.m., except on Saturday afternoon, from 18 to 31 May inclusive.
You may be assisted by one or more lawyers.
Yours faithfully ..."
On 4 June, the Provincial Council heard Dr. Albert and suspended his right to practise medicine for a period of two years. It found that Dr. Albert had "carried out no medical examinations such as to warrant finding a state of unfitness for work", that he had been unable to produce "any medical document whatsoever capable of establishing" such a state, and that neither had "his memory permitted him ... to come forward with any justification". It considered that "it ought to impose a very severe sanction" in view of "the very serious disciplinary record" of the applicant (two suspensions from practice following criminal convictions).
Mr. Albert was notified of the decision on 11 June.
10. Dr. Albert appealed to the French-language Appeals Council of the Ordre on 18 June. The Provincial Council’s legal assessor did likewise on 26 June in order to have the penalty increased.
On 19 November, the Appeals Council upheld the decision given at first instance.
11. By judgment of 12 June 1975, the Court of Cassation rejected the applicant’s appeal on a point of law alleging violation of the rights of defence and, in so far as relevant, of Article 97 of the Constitution.
12. Dr. Herman Le Compte, a Belgian national born in 1929 and living at Knokke-Heist, is a medical practitioner.
13. On 22 February 1974, the West Flanders Provincial Council of the Ordre des médecins informed him that an enquiry had been ordered concerning him for "improper publicity" (ongeoorloofde publiciteit) and "contempt (beledigingen) of the Ordre": he had given three interviews to magazines and sent a letter to the President of the Provincial Council.
On 26 March, the applicant wrote to the said President to advise him of his intention to exercise his right, under sections 40 an 41 of the Royal Decree of 6 February 1970, to challenge the Provincial Council’s members as a whole.
On 27 March, the Provincial Council, by decision rendered in absentia, rejected the applicant’s challenge and suspended his right to practise medicine for a period of two years.
14. The applicant entered an appeal on 5 April 1974. He alleged, amongst other things, violation of Article 6 para. 1 (art. 6-1) of the Convention:
"This provision of the Convention guarantees to a litigant that his case will be dealt with at a public hearing by an independent and impartial tribunal. neither of these two guarantees was assured.
(a) Cases before the Councils of the Ordre des médecins are not dealt with at a public hearing even though no reason of public policy exists for dealing with cases in camera or, at least, for pronouncing decisions in camera. Consequently, honest treatment in accordance with the principles of the European Convention is rendered impossible.
(b) The Councils of the Ordre are, by reason of their membership alone, neither independent nor impartial since half of their members are other medical practitioners." (Translation from Dutch)
The legal assessor of the Provincial Council did not avail himself of his own right to appeal.
On 28 October, the Dutch-language Appeals Council rejected the grounds challenging its members and changed the applicants’ suspension into striking his name from the register of the Ordre.
On 4 November, Dr. Le Compte lodged an objection (opposition) against this decision, which had been given in absentia.
As he had been summoned to appear at a hearing on 16 December, he lodged a further challenge on 6 December against the Appeals Council’s members as a whole.
On 6 January 1975, the Appeals Council rejected both the objection and the challenge.
15. The applicant thereupon appealed on a point of law to the court of Cassation, but his appeal was dismissed by judgment of 7 November 1975, which was notified to him on 25 November.
16. The striking of Dr. Le Compte’s name from the register of the Ordre took effect on 26 December.
Under sections 7 para. 1 and 31 of Royal Decree No. 79 of 10 November 1967 and section 38 para. 1 of Royal Decree No. 78 of the same date, being struck off the register has the consequence of debarring him from practising medicine.
17. Belgian legislation on the Ordre des médecins, particularly on the organs of the Ordre and the procedure followed in disciplinary matters, is described in the Le Compte, Van Leuven and De Meyere judgment of 23 June 1981 (Series A no. 43, pp. 11-17, paras. 20-34). The Court refers back to this judgment in this connection.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-77997
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF VOZAR v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Remainder inadmissible;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
JUDGES: Nicolas Bratza
TEXT: 4. The applicant was born in 1947 and lives in Šoporňa.
5. The applicant is a self-employed entrepreneur. He owns a meat processing business. In that capacity he had dealings with a State-owned enterprise, T., and in particular with one of its branch offices.
6. In early 1994 the applicant brought several actions against the branch office in the Trnava District Court (Okresný súd), the Bratislava Regional Court (Krajský súd) and the Trnava Regional Court. He submitted that the defendant owed him money and sought repayment.
7. The applicant’s actions were examined in summary proceedings and resulted in the making of a series of payment orders (platobný rozkaz) in March 1994. The defendant was ordered to pay the applicant a total of more than 3.7 million Slovakian korunas (SKK) accompanied by late-payment penalties. The orders were later certified as enforceable as from April 1994.
8. Having been unable to recover any part of his claim, the applicant filed an insolvency petition against T. The insolvency proceedings are a separate subject-matter of the present application and they are described in detail below.
9. T. subsequently went thought the process of privatisation. It was dissolved on 23 June 1994 by a decision of its founder, the Ministry of Agriculture, and all its assets (“the privatised assets”) were transferred to the National Privatisation Agency (Fond národného majetku – “FNM”).
10. On 12 July 1994 T. was struck off the register of companies and legally ceased to exist.
11. On 14 July 1994 FNM sold the privatised assets to a private limited company S. As a result of this sale, under section 15 of the Large Scale Privatisation Act (Law no. 92/1991 Coll., as amended), all liabilities associated with the privatised assets, including the applicant’s claims, were transferred to S. The latter acknowledged having assumed such liabilities in a letter of 20 July 1994.
12. On 8 June 1995 S. rescinded the privatisation agreement because it was unable to pay the purchase price. As a result, all liabilities associated with the privatised assets, including the applicant’s claims, were transferred back to FNM. S. subsequently ceased commercial operations and was eventually struck off the register of companies.
13. In June 1996 the applicant submitted his claim to FNM. He observed that at that time FNM held the privatised assets and considered, therefore, that FNM had also assumed the liabilities associated with these assets and was liable to satisfy the applicant’s claim. The applicant reiterated the claim in August and September 1996, but to no avail.
14. On 17 October 1996 the applicant commissioned a judicial enforcement officer to enforce the payment orders of March 1994.
15. On 18 October 1996 FNM sold the privatised assets to another private limited company P-I. The liabilities associated with the privatised assets were thus transferred to P-I. which acknowledged having assumed the liabilities in a letter to the applicant of 15 November 1996. However, in order to determine their scope, P-I. requested the applicant to provide a detailed summary of his claims.
16. On 30 December 1996 the District Court authorised the enforcement of the payment orders of March 1994 against P-I.
17. On 3 March 1997 P-I. decided to dissolve the company, to establish two new private limited companies, P. and M., and to divide the assets of PI. between the new companies. The debt in respect of the applicant was transferred to company M. Company P-I. was subsequently struck off the register of companies.
18. The applicant challenged the decision to dissolve P-I. and to divide up its assets by way of a civil action against P. and M. The action is a separate subject-matter of the present application and is described in detail below.
19. On 7 August 1997 the enforcement officer issued an order to freeze the real property of M. with a view to enforcing the amounts owed to the applicant.
20. In 1997 the payment orders of March 1994 were quashed. The quashing was upheld on the applicant’s appeals in 1998 and 1999. It was held that both the applicant’s actions and the payment orders had incorrectly identified the applicant’s debtor as the branch office of T. whereas branch offices had no distinct legal personality and could not be sued.
21. As a result of the quashing the enforcement proceedings against companies P-I. and M. were discontinued on 28 June and 17 September 1998, respectively.
22. In 1998 the applicant’s wife committed suicide.
23. On 30 September 1999 the Bratislava Regional Court dismissed a petition by a creditor to declare company M. insolvent on the ground that the company had no assets. The company was subsequently struck off the register.
24. On 21 December 1999 company P. was declared insolvent. The insolvency proceedings are still pending.
25. On 10 May 1994 the applicant lodged his insolvency petition against T. in the Bratislava Regional Court.
26. On 26 May 1994 the Regional Court requested the debtor to convene a meeting of creditors in accordance with the Bankruptcy Code.
27. In a letter of 30 June 1994 the Ministry of Agriculture requested the Regional Court’s opinion as to the implications of the insolvency petition on the process of T.’s privatisation. In a letter of 1 July 1994 the Regional Court expressed the view that as long as T. had not been declared insolvent, which was the case, there were no legal obstacles under the insolvency rules to privatisation.
28. On 27 September 1994 T. informed the Regional Court that all of its assets had been transferred to S. On 22 December 1995 S. informed the Regional Court that the privatised assets had been transferred back to FNM as a result of its decision to rescind the privatisation agreement.
29. On 12 March 1996 the Regional Court requested FNM to provide information about the current situation concerning the privatised assets. FNM responded on 28 March 1996.
30. In a letter of 15 March 1996 the President of the Regional Court informed the applicant in reply to his complaint that the reason why the matter had not yet been concluded was the heavy workload of judges.
31. On 27 July 1999 the Regional Court again requested FNM to provide information about the current situation concerning the privatised assets. FNM responded on 20 September 1999.
32. On 24 September 2001 the Regional Court requested the applicant and his lawyer to specify the entity which was the defendant in the proceedings in view of the privatisation of T. and the restructuring of P-I. In the absence of any response the Regional Court reiterated the request on 8 January 2002.
33. On 12 March 2002 the Regional Court discontinued the insolvency proceedings on the ground that despite repeated requests the applicant had failed to specify which entity was the defendant. The applicant did not appeal and the decision became final on 8 April 2002.
34. On 5 December 1997 the applicant filed an action challenging the decision of 3 March 1997 concerning the dissolution of P-I. and the creation of two new companies. The applicant also challenged the relevant entries in the register of companies and sought an interim measure staying the enforcement proceedings against M. in a different matter.
35. On 20 April 2004 the Trnava District Court stayed the proceedings under Article 14 § 1 (d) of the Bankruptcy Code pending the outcome of the insolvency proceedings concerning P. The proceedings are still pending.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1