ITEMID: 001-104874
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: RODIVILOV v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Angelika Nußberger;Dean Spielmann;Elisabet Fura;Isabelle Berro-Lefèvre;Mark Villiger
TEXT: The applicant, Mr Oleg Leonidovich Rodivilov, is a Ukrainian national who was born in 1965 and lives in Simferopol, Ukraine.
The applicant is a member of the Verkhovna Rada of the Autonomous Republic of Crimea (“the ARC”) (the representative body of the ARC) (“Верховна Рада Автономної Республіки Крим”) and a member of the citizens’ association “The Russian Community of the Crimea”.
On 9 November 2004 in a plenary meeting of the Verkhovna Rada of the ARC the applicant said the following:
“I am empowered by the voters to inform you that if by November 17, thus by the next session of the Verkhovna Rada, there has been no decision on the legal confirmation of the status of the Tikhaya Bukhta nature reserve area (Тихая бухта), the ordinary citizens will themselves put a stop to the unlawful acquisition of land. Today extremists from the Majlis-Kurultai radical group are freely bringing construction materials to the Tikhaya Bukhta, openly and insolently breaching Ukrainian and Crimean laws.”
The Kurultai of Crimean Tatars is a representative body for the Crimean Tatars, which, according to its Rules of Procedure decides on all essential issues of political, economical and cultural life of Crimean Tatars. The Majlis is an executive body of the Kurultai. They regularly hold sessions. However, there are no official legal acts which determine the legal status of these bodies. The members of the Majlis are allegedly members of the Council of Crimean Tatars Representatives affiliated with the President of Ukraine (Decree of the President of Ukraine of 18 May 1999 no. 518/99).
On 12 November 2004 the journalist A. published an article in the Golos Kryma (“Голос Крыма”) newspaper – ‘An MP threatens the Crimean Tatars’ (‘Депутат грозит крымским татарам’). The article said the following:
“As always, representatives of the Russian community of the Crimea firmly opposed the Crimean Tatars. O.Radivilov, MP, his usual self, did not fail to mention the Majlis-Kurultai with regard to the “unlawful acquisition of land in the Tikhaya Bukhta”. In his opinion, despite prohibitions, the Majlis assisted the “invaders” in bringing construction materials into the national reserve zone. He threatened that a group of inhabitants of south-east Crimea was going to punish the “offenders”.
On 8 July 2005 the Golos Kryma newspaper published a letter from the applicant:
“On 12 November 2004 Golos Kryma (issue no. 46 (573)) published an editorial by the journalist [...] named ”An MP threatens the Crimean Tatars”.
In the article it is intentionally falsely stated that allegedly “as always, representatives of the Russian community of the Crimea firmly opposed the Crimean Tatars. O.Rodivilov MP, his usual self, did not fail to mention the Majlis-Kurultai with regard to the “unlawful acquisition of land in the Tikhaya Bukhta”... He threatens ...” (as follows).
This information in the article is intentionally biased, incites inter-ethnic hatred rage and as it references me as a representative of the Russian Community of the Crimea in the Parliament of the Crimea, it threatens to worsen relations between the two largest ethnic groups of the Republic of Crimea.
Besides, the libel was intended to humiliate me as a member of the Supreme Council of the Crimea in the eyes of my voters, citizens of various ethnic origins.
These provocative and above all intentionally false articles in the Golos Kryma newspaper, which was founded by the State Committee on Ethnic Relations, systematically disseminated in this weekly publication (most recently on 18 and 25 March 2005), discredit me as a citizen.
My systematic unreasonable harassment in the pages of Golos Kryma I perceive as an intention on the part of the editors to humiliate me as a citizen of Russian ethnic origin. The aforementioned untrue statements in Golos Kryma serve as a basis for this. [...]
In this respect, in accordance with the law in force, I demand publication of an editorial in the next issue of Golos Kryma to correct this statement in full.
I also demand public apologies from the editors, to be published together with my statement.”
On the same page the newspaper also published an article by the journalist A. – “Do not step on journalists’ throats, do not knock the pen out of their hands!” (“Не наступайте на горло журналистам, не вышибайте из рук перо!”), in which the journalist quoted the applicant’s speech of 9 November 2004 and said the following:
“As a journalist accredited to the Verkhovna Rada of the ACR, I attend all the meetings of the parliamentary sessions, of the presidium, and of the commissions and so on and know about O.Rodivilov’s speeches first-hand. And whether written reproduction of an oral statement can be called a libel? According to the author of the letter, my information only reflects what has been said from the high tribune by the member of the Verkhovna Rada of the ARC, O.Rodivilov. And he has absolutely correctly mentioned that such things incited racial hatred.
I quote the record of a special session of the Verkhovna Rada of the ARC of 9 November 2004 [...]
I believe you would agree with me that these words pronounced from the high tribune, cannot only incite “racial hatred”, but would simply provoke radical actions by ordinary citizens against the Crimean Tatars.
From the high tribune of the Verkhovna Rada of the ARC and whenever possible Mr Rodivilov discredits the publicly elected Majilis, legitimised by a decree of President Kuchma (and not banned by acting President Yushchenko) as the Council of Representatives of the Crimean Tatars affiliated with the President of Ukraine. Therefore, all thirty-three members of the Majilis are members of this Council. The member of the Verkhovna Rada of the ARC, elected by “citizens of various ethnic origins”, “representative of the Russian Community of the Crimea in the Parliament of the Crimea”, calls the members of the Council extremists from the radical group “Majilis-Kurultai”.
So who is it who threatens to worsen the relationships between citizens?
I quote the record of the meeting of the Verkhovna Rada of the ARC of 16 March 2005. Appealing to the thirteen-year-old documents, he requested “to bring the group of Majilis-Kurultai, into conformity with law. This is an extremist Muslim group and there are a lot of documents in this respect in your main office”.
Not everybody can spend time lodging applications with various bodies as Mr Rodivilov does, and forcing journalists, instead of [fulfilling] their direct duties, to write explanations to various bodies, which already have enough to do. In all likelihood he has his special reasons and I think I know what they are. As they say today, he wants to run a “PR campaign” before the elections.
“Golos Kryma is involved in provocations”, - states the member of the Verkhovna Rada of the ARC O.Rodivilov”. That was the title of an article in Russkiy Mir, in which its author accuses several employees of the newspaper [...] of bias and provocation. Besides, the member of Parliament O.Rodivilov complained to the Simferopol Prosecutor’s Office, to the Tsentralnyy District Prosecutor’s Office, and to the Permanent Representative of the President of Ukraine in the ARC, [...]. And if it takes nearly a whole day to provide explanations to one of these bodies (those who worked in the mass media when there was censorship remember those “nice” times very well), our honourable reader will understand how long it will take to write explanations to all these bodies. You can forget about your work as a journalist, which was probably what the MP wanted.”
In November 2005 the applicant instituted civil defamation proceedings in the Tsentralnyy District Court of Simferopol against the newspaper Golos Kryma. He stated that in the articles he had been accused of inciting racial hatred and humiliated as a citizen of Russian ethnic origin. The applicant stated that he “was fighting against the Majlis-Kurultai criminal organisation and not against the Crimean Tatars”. He requested it to be published that the statements about him published on 12 November 2004 and 8 July 2005 were defamatory. He also claimed 100 Ukrainian hryvnias in compensation for non-pecuniary damage. The applicant later amended his claims and requested publication of a correction.
On 3 July 2006 the court found in part for the applicant. It held that in his speech of 9 November 2004 the applicant had requested that a decision be urgently adopted on the legal status of a nature reserve and tried to warn the members of the Verkhovna Rada about the possible consequences of not doing so. Therefore, the court found that the expressions “An MP threatens the Crimean Tatars” and “He threatened that a group of inhabitants of south-east Crimea was going to punish the “offenders” were defamatory. The court ordered the newspaper to publish the operative part of its decision. The remainder of the applicant’s claim was rejected.
On 30 January 2007 the Court of Appeal of the ARC quashed this decision and rejected the applicant’s claims. It found that:
“When adopting its decision, the court did not take into account that the author’s expressions: “An MP threatens the Crimean Tatars” and “He threatened that a group of inhabitants of south-east Crimea was going to punish the “offenders” were value judgments and their veracity was impossible to prove.
The claimant is a public figure.
The panel of judges agrees that the newspapers which quoted the statements of MP Rodivilov, were more tendentious and harsher interpretations of his speech. They include the author’s perceptions and her critical evaluation of the claimant’s sayings. However, when choosing his profession, the applicant left himself exposed to harsh criticism and close scrutiny; that is the burden that politicians bear in a democratic society.
In such circumstances, the present value judgments are not the reasons for limitation of the defendant’s rights under Article 10 of the Convention and for interference with freedom of speech by the State.”
On 25 June 2007 the Supreme Court of Ukraine rejected the applicant’s request for leave to appeal on points of law.
Relevant extracts from the Constitution read as follows:
“... Everyone is guaranteed judicial protection of the right to correction of unaccurate statements about himself or herself and members of his or her family, and of the right to demand that any type of statement be expunged, and also the right to compensation for pecuniary or non-pecuniary damage inflicted by the collection, storage, use and dissemination of such incorrect statements.”
“Everyone is guaranteed the right to freedom of thought and speech, and to the free expression of his or her views and beliefs.
Everyone has the right to freely collect, store, use and disseminate information by oral, written or other means of his or her choice.
The exercise of these rights may be restricted by law in the interests of national security, territorial indivisibility or public order, with the purpose of preventing disturbances or crime, protecting the health of the population, the reputation or rights of other persons, preventing the publication of information received confidentially, or maintaining the authority and impartiality of justice.”
Relevant extracts from the Civil Code read as follows:
“1. A person shall have the right to compensation for non-pecuniary damage in the event of an infringement of his/her rights.
2. Non-pecuniary damage may consist of:
...
4) humiliation and damage to the honour and dignity of a physical person, as well as the professional reputation of a physical or legal person...[defamation]...”
“1. A physical person whose personality rights are breached as a result of inaccurate statements being disseminated about him or her shall be entitled to a response as well as to a correction of those statements.
...
3. The negative information disseminated about a person shall be considered as untruthful unless the person who has disseminated it can prove the opposite.
...
6. A person whose rights have been infringed ... shall have the right to a response and the publication of a correction in the same mass media source and in accordance with the procedure established by law.
...
Correction of untrue statements shall not depend on the actual guilt of the person who disseminated them.
7. Untrue statements shall be corrected in the same manner as they were disseminated.”
The relevant extracts from the Information Act provide as follows:
“...Liability for infringement of legislation on information shall be borne by persons responsible for the following infringements:
...dissemination of material that does not correspond to reality or defames the honour and dignity of a person...”
“No one may be held liable for making value judgments.
Value judgments, excluding insults and libel, are statements which do not contain factual data, in particular, criticism, the evaluation of actions, and also statements which cannot be said to contain factual data because of the way they are worded, in particular, [with] the use of hyperbole, allegory, or satire. Value judgments are not subject to retraction and their truth need not be proved...”


ITEMID: 001-57836
LANGUAGEISOCODE: ENG
RESPONDENT: GRC
BRANCH: CHAMBER
DATE: 1993
DOCNAME: CASE OF PAPAMICHALOPOULOS AND OTHERS v. GREECE
IMPORTANCE: 2
CONCLUSION: Preliminary objection dismissed (Art. 35) Admissibility criteria;(Art. 35-1) Exhaustion of domestic remedies;Preliminary objection dismissed (Art. 34) Individual applications;(Art. 34) Victim;Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Just satisfaction reserved (Article 41 - Just satisfaction)
JUDGES: N. Valticos;R. Pekkanen
TEXT: 6. The applicants, who are all of Greek nationality, are the owners or co-owners of land in the area of Agia Marina Loimikou, near Marathon, Attica. On 16 March 1963 the Greek Office of Tourism gave its consent for the construction of a hotel complex on the site. At the applicants’ request, an American firm of architects drew up plans.
7. By a Law of 20 August 1967 (anagastikos nomos no. 109 - "Law no. 109/1967"), which was passed some months after the dictatorship was established, the Greek State transferred an area of 1,165,000 sq. m near Agia Marina beach to the Navy Fund (Tamio Ethnikou Stolou).
Ten of the applicants, who owned part of this land (approximately 165,000 sq. m), applied to State Counsel at the Athens Court of First Instance (Isageleas Protodikon), requesting him to take interim measures and "restore the original position".
On 30 July 1968 State Counsel made three orders granting the applications, as the land in question was not public forest but consisted of agricultural land cultivated by the owners. One of the three orders, however, was revoked by State Counsel at the Athens Court of Appeal on the ground of "lack of urgency", following an application by the Navy Fund.
On 12 April 1969 the Minister of Agriculture informed Navy headquarters that part of the land transferred was not available for disposal and that it was necessary to take steps to "restore the rightful position".
8. Far from restoring the land to its owners, however, the Navy proceeded to construct a naval base and a holiday resort for officers. A royal decree of 12 November 1969 (published in the Official Gazette of 15 December 1969) designated the entire Agia Marina Loimikou region as a "naval fortress".
9. After the fall of the dictatorship in 1974, Mr Petros Papamichalopoulos, the father of the applicants Ioannis and Pantelis Papamichalopoulos, commenced proceedings in the Athens Court of First Instance to establish his title to three parcels of land. In a judgment (no. 3031/1976) given on 28 February 1976 the court held that in 1964 the plaintiff had indeed acquired title to 2,500 sq. m of land by a notarially recorded deed; that the land in question was not public forest but consisted of parcels which had been cultivated and occupied bona fide by various individuals successively since 1890; and that the Navy Fund was therefore obliged to return it.
10. The Athens Court of Appeal upheld this decision on 31 December 1976 (in judgment no. 8011/1976). It considered that the State had not transferred ownership of the land in question in 1967 since it had no title and the presumption of ownership applied only to forests, not to agricultural land.
11. An appeal on points of law by the Navy Fund was dismissed by the Court of Cassation (Arios Pagos) on 14 June 1978 (in judgment no. 775/1978), on the ground that Mr Petros Papamichalopoulos’s ascendants had acquired title to their land by prescription and in accordance with the Romano-Byzantine law applicable at the time (1860).
12. On 17 July 1978 Mr Petros Papamichalopoulos sent a bailiff to serve the above-mentioned judgments on the Navy Fund with a view to their enforcement. On 28 September, accompanied by a bailiff, he went to the entrance of the naval base and sought enforcement of the court decisions, but the commanding officer of the base refused to admit them on the grounds that he had been ordered not to and that they required authorisation from Navy headquarters, which was refused. An application to State Counsel at the Court of Cassation was also unsuccessful.
13. In August 1977 Mr Karayannis and the other applicants brought two actions in the Athens Court of First Instance to establish their title to the land in issue. The State intervened in the proceedings in support of the Navy Fund.
In two interlocutory decisions of 1979 (nos. 11903 and 11904/1979) the court ordered further inquiries into the facts. It also held it necessary to commission several experts to examine the title documents in the applicants’ and the Navy Fund’s possession and file an opinion within five months on whether the land belonged to the plaintiffs or was part of the public forest transferred by Law no. 109/1967. However, the proceedings remained pending.
14. On 22 July 1980 the Minister of Defence informed the applicants that the construction of the naval base prevented return of the land in question, but that proceedings were under way with a view to a grant of other plots of land to replace those occupied by the Navy Fund.
15. On 16 October 1980 the Minister of Agriculture requested the Prefect of East Attica to transfer to the applicants land of equal value situated in that region. He stated that even though the court decisions delivered so far related to only some of the private individuals who had been dispossessed in 1967, future or pending actions brought by other owners would certainly have the same outcome.
Notwithstanding a decree of 19 June 1981 regulating building development within the "Ramnoudos" archaeological site in the Loimiko valley (in which the disputed land was situated), the Navy Fund carried on with the construction of a hotel complex within the perimeter of the naval base.
16. By a joint decision of 9 September 1981 the Minister for Economic Affairs and the Ministers of Agriculture and Defence set up a committee of experts to choose certain of the pieces of land offered in exchange by the Ministry of Agriculture and value them; among these was a plot at Dionysos in Attica (see paragraph 27 below). The committee expressed its findings in a report of 14 January 1982.
17. In section 10 (see paragraph 29 below) of Law no. 1341/1983, published in the Official Gazette of 30 March 1983, it was expressly acknowledged that private individuals who were claiming title to land occupied by the Navy Fund were entitled to apply for other land in exchange, using the procedure laid down in Article 263 of the Rural Code (see paragraph 30 below); for this purpose it provided for a procedure for verifying title to the land in accordance with Article 246 of that code.
The explanatory memorandum on the Law contained the following:
"[S]ection [10] provides for the possibility of settling the case of the properties included in the area ... transferred to the Navy Fund under Law no. 109/1967.
This is an area of approximately 165,000 sq. m. It is claimed by a number of private individuals. Some of these have brought actions in the civil courts and obtained from the Court of Cassation a final decision in which they are acknowledged to be the owners. Having regard to the fact that the other [pending] cases are likely to have the same outcome and that paying compensation would be a solution disadvantageous to the authorities, an enactment must be passed enabling [the remaining private individuals] to replace their properties by others, which belong to the State and are available, subject to prior verification of the owners’ title.
..."
18. Under this Law the applicants applied to the Athens second Expropriation Board (Epitropi apallotrioseon), composed of the President of the Athens Court of First Instance and civil-service experts. In decision no. 17/1983 of 19 September 1983 the Board acknowledged their ownership of an area of 104,018 sq. m. It stated the following:
"... it appears from the hearings, written submissions, oral statements and documents in the case file that the applicants ... occupied bona fide in continuous and regular fashion from time immemorial until 1967 an area of approximately [160,000 sq. m] situate at Agia Marina Loimikou ...; that the aforesaid area had for a long time been used for agriculture, as shown by several items of evidence ..."
19. On 8 December 1983 the Navy Fund appealed to the Athens Court of First Instance against this decision. The Greek State joined it by intervening in the proceedings on 25 January 1984.
In a judgment of 31 May 1984 (no. 1890) the Court of First Instance declared the appeal inadmissible; in the court’s opinion, only the State and the parties concerned had standing to appeal against the decision in question, and not third parties such as the Navy Fund.
20. On 29 December 1986 the Athens Court of Appeal upheld this decision.
21. The Minister for Economic Affairs lodged an appeal on points of law, which was declared inadmissible by the Court of Cassation on 8 January 1988 (in judgment no. 5/1988) on the following grounds:
"... Law no. 1341/1983 gave third parties ... who claim ownership of the tract contained within the larger area transferred to the Navy Fund the possibility of applying for the claimed land to be exchanged for another plot of equal value ... . Such exchanges will be effected in accordance with the procedure laid down in paragraphs 3, 4 and 5 of Article 263 of the Rural Code, that is to say by a decision of the Minister of Agriculture, after administrative proceedings before a tripartite board and in accordance with Article 263 of the Rural Code. ... In order to ensure that these exchanges are effected quickly and simply, the legislature has given interested parties the possibility of using the simple, quick procedure provided for in Article 246 of the Rural Code in order to have their [title] acknowledged. In adopting the aforementioned provision of section 10 of Law no. 1341/1983, it did not intend to provide, in accordance with Article 246 of the Rural Code, a solution for the dispute which might arise if the Navy Fund claimed against third parties the ownership of the area transferred by Law no. 109/1967. For that purpose the Navy Fund will have to use the procedure of ordinary law. This is apparent not only from the wording and the grammatical interpretation of the aforementioned provision ... but also from the purpose that the legislature sought to achieve ...
... In granting the right to have their title ... acknowledged only to the `private individuals’ (natural and legal persons) that own [these] areas of land ..., the legislature did not introduce any unjustified discrimination against the Navy Fund and did not deprive it of judicial protection, as it is still open to it, under ordinary-law procedure, to secure recognition of its title, which will not, however, enable it to receive other areas of land as this was not the legislature’s intention ..."
On 24 June 1988 (in judgment no. 1149/1988) the Court of Cassation dismissed, on the same grounds, an appeal on points of law that had been brought by the Navy Fund.
22. On 25 July 1984 a further decree extended the geographical boundaries of the "naval fortress".
Pursuant to section 10 of Law no. 1341/1983, the Prefect of East Attica informed the Minister of Agriculture and the applicants on 11 September 1985 that some of the parcels of land offered in exchange were subject to special rules of ownership, while others had already been developed, and others again were protected by the legislation on forests.
In November 1987 the Minister of Agriculture suggested to the applicants that they should accept land in the prefecture of Pieria, 450 km from Agia Marina; it asked the Prefect of Pieria to look for land for this purpose. In view of the authorities’ silence, three Members of Parliament in November 1988 put questions in Parliament to the Ministers of Defence and Agriculture asking what action had been taken in the matter. In a letter of 25 October 1990 the Pieria Agricultural Department admitted that it had been unable to find suitable land.
23. On 2 December 1979 the applicants had brought two actions in the Athens Court of First Instance against the Navy Fund and the Greek State, represented by the Ministry of Finance, for damages for the loss of use of their property. In two judgments of 21 June 1985 the court adjourned the cases on the ground that verification of the applicants’ title to the land had not been completed except in the case of Mr Petros Papamichalopoulos.
24. Earlier, the Navy Fund had asked the Association of Court Experts to produce a valuation of the property in issue. The designated expert obtained from the third applicant, Mr Karayannis, the opinion of all the owners in question on the documents which the Navy Fund had communicated to him. On 20 June 1986 Mr Karayannis asked the Navy Fund for information about the nature of the documents made available to the expert. On 10 March 1987 the Fund refused to provide any on the ground that the matter was of the nature of an internal procedure and this ruled out any intervention by third parties.
25. Several other actions for damages brought over a period up to 1991 were adjourned by the Athens Court of First Instance or else have not yet been heard.
26. On 29 October 1991 the Ministry of Economic Affairs wrote to the State Lands Authority (Ktimatiki Etairia tou Demosiou) asking them to find land which might be used for the proposed exchange; it also drew their attention to the State’s obligation to pay the applicants exorbitant sums of money if the exchange did not take place. In its answer the State Lands Authority again stated that there was no land available.
27. By decision no. 131 of the Cabinet, published in the Official Gazette of 17 October 1991, the administrative board of the Defence Fund had transferred to the Ministry of Economic Affairs ownership of 470,000 sq. m of land belonging to the disused Dounis military camp at Dionysos, Attica, in the vicinity of the land in issue (see paragraph 16 above). This land, which was intended for sale, was included in the land register and given the name "Semeli estate". On 31 May 1992 the State Lands Authority placed advertisements in the press.
On 21 July 1992 the applicants’ lawyer wrote to the State Lands Authority, asking whether it would be possible to allocate the new estate to his clients; on the following day he sent an identical letter to all the relevant ministers, the President of the Legal Council of State and the Director of the Navy Fund. The applicants have not yet received any response, apart from a copy of a letter from the Ministry of Economic Affairs department responsible for public property to the State Lands Authority asking the latter to take action under its powers and notify the writer and the other public authorities dealing with the case.
28. Under Article 17 of the Greek Constitution of 1952, which applied at the time the Law in issue was passed,
"1. No one shall be deprived of his property unless it is for the public benefit, which must be duly proved, when and as specified by law and only after full compensation. Compensation shall in all cases be determined by the civil courts. In urgent cases it may also be determined by the courts on a provisional basis after the beneficiary has been heard or summoned, and the court may, at its discretion, require the latter to provide commensurate security, as provided by law. Until payment of the final or provisional compensation determined by the court, all rights of the owner shall be maintained intact and occupation of the property shall not be allowed.
...
4. Special status shall govern requisitioning to meet the needs of the armed forces in the event of war or mobilisation or to meet an immediate social need that is likely to jeopardise public order or public health."
"1. Property shall be protected by the State; rights deriving therefrom, however, may not be exercised contrary to the public interest.
2. No one may be deprived of his property unless it is for the public benefit, which must be duly proved, when and as specified by law and only after full compensation corresponding to the value of the expropriated property at the time of the court hearing on the provisional determination of compensation. In cases in which an application is made for immediate final determination of compensation, regard shall be had to the value at the time of the court hearing of the application.
3. Any change in the value of expropriated property occurring after publication of the expropriation decision and resulting exclusively from it shall not be taken into account.
4. Compensation shall in all cases be determined by the civil courts. It may also be determined by the courts on a provisional basis after the beneficiary has been heard or summoned, and the court may, at its discretion, require the latter to provide commensurate security before receiving the compensation, as provided by law.
Until payment of the final or provisional compensation determined by the court, all rights of the owner shall be maintained intact and occupation of the property shall not be allowed.
The compensation awarded must be paid within a year and a half at the latest from the date of publication of the decision provisionally determining the compensation payable; in the case of applications for immediate final determination of compensation, this must be paid within a year and a half at the latest from the date of publication of the court ruling, otherwise the expropriation shall automatically be revoked.
The compensation as such shall be exempt from all taxes, deductions and rates.
5. The cases in which a compulsory indemnity shall be payable to the beneficiaries for loss of income from expropriated property until the time of payment of the compensation shall be laid down by law.
6. Where works of public benefit or of general importance to the economy of the country are being carried out, a law may allow the expropriation by the State of areas greater than that of the land needed for the execution of the works. The same law shall lay down the conditions and terms of such expropriation, as well as the arrangements for the disposal or use for public or public-utility purposes in general of expropriated areas not required for the execution of the proposed works.
..."
29. Under section 10 of Law no. 1341/1983,
"Land of which third parties have claimed ownership and which forms part of the area at Agia Marina Loimikou in Attica which was transferred to the Navy Fund under Law no. 109/1967 ... may, on application by the persons concerned, be exchanged for land of equal value, dedicated for public use (koinokhristes) or available under the legislation on land use, in accordance with the procedure provided for in paragraphs 3, 4 and 5 of Article 263 of the Rural Code.
In order to have their ownership of the said land acknowledged, the persons concerned may follow the procedure laid down in Article 246 of the Rural Code ..."
30. The relevant paragraphs of Articles 246 and 263 of the Rural Code provide:
"Acknowledgment of title
1. Where an application is made to it by the parties concerned, the appropriate Expropriation Board shall determine title to the expropriated land in accordance with Law no. 4857 and Article 242 of the present code.
Within not more than three months from the notification of the decision, the State and the parties concerned may challenge the decision in the Court of First Instance that has jurisdiction, which shall make a final ruling in accordance with the procedure laid down in the following Articles.
2. Against judgments given by the courts of first instance under Article 246 of the Rural Code before the present Law comes into force an appeal shall lie within not more than one year from the date of commencement of this Law to the Court of Appeal that has jurisdiction ...
..."
"...
4. Persons acknowledged as owners of expropriated land shall be invited by the Minister of Agriculture ... to lodge a notarially recorded certificate in which they declare that they accept the exchange of land effected under the preceding paragraph and waive any claim for compensation.
5. The aforementioned allocation of land belonging to the State, to a municipality or to a cooperative shall take effect by decision of the Minister of Agriculture in lieu of a title deed, which shall be entered in the land register.
..."
VIOLATED_ARTICLES: P1
VIOLATED_PARAGRAPHS: P1-1
VIOLATED_BULLETPOINTS: P1-1-1


ITEMID: 001-105273
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF ORLOV v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment;Inhuman treatment);Violation of Article 6+6-3 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3 - Rights of defence;Article 6-3-b - Preparation of defence;Article 6-3-c - Defence through legal assistance);No violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of application);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
JUDGES: Anatoly Kovler;George Nicolaou;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen
TEXT: 5. The applicant was born in 1960 and is serving a prison term in prison no. 3 in the Altay Region.
6. On 4 March 2003 the applicant was arrested on suspicion of murder. The investigating authority authorised a search in his house; it was carried out on the same date. After having rejected his request to retain Ms Y. as counsel, on the same evening the investigator appointed Mr Yu., a legal-aid lawyer, to represent the applicant and then proceeded to interview him.
7. On 5 March 2003 the applicant contacted Ms Y. and she was appointed as his (legal-aid) counsel. Allegedly, the applicant also obtained advice from Mr K., who subsequently became counsel to his co-accused, Mr R. Mr R. testified against the applicant.
8. On 6 March 2003 the Tsentralniy District Court of Barnaul confirmed the lawfulness of the applicant’s arrest and authorised his continued detention. On an unspecified date that detention order was upheld on appeal. The applicant’s detention was extended on 30 April, 19 June and 29 July 2003.
9. After the investigation had been completed, the applicant studied the case file, including the expert reports commissioned by the investigator. Allegedly, for unspecified reasons the applicant was not assisted by counsel at that time (see also paragraph 16 below).
10. The case was sent for trial before the Altay Regional Court. The applicant sought to be tried by a jury. On 11 August 2003 the Regional Court held a preliminary hearing on that matter and appointed Ms Ro., on whose advice the applicant withdrew his request for trial by a jury. After this hearing the applicant was assisted by Ms Y.
11. On 20 November 2003 the Regional Court convicted the applicant as charged and sentenced him to nineteen years’ imprisonment. The court relied, inter alia, on written statements made by Mr R. and other witnesses, and on several expert reports.
12. The applicant appealed to the Supreme Court of Russia and requested the appointment of legal-aid counsel. It appears that both the Regional Court and Supreme Court refused his requests.
13. Ms Y. submitted a statement of appeal on the applicant’s behalf.
14. On 30 March 2004 the applicant informed the Supreme Court that he had not been given copies of the statements of appeal lodged by his co-defendants and the public prosecutor.
15. On 14 May 2004 the applicant asked the Supreme Court to appoint legal-aid counsel for the appeal proceedings. An adjournment was ordered on one occasion to enable the applicant’s father to retain counsel (see also paragraph 20 below). In the same proceedings, Y., who had assisted the applicant at first instance, informed the Supreme Court that she had not been retained for the appeal proceedings and would no longer represent the applicant.
16. On 18 June 2004 the Supreme Court held an appeal hearing. It appears that the applicant participated in it by a video link from a remand centre in Chelyabinsk. The appeal court examined the appeals and reduced the applicant’s prison term to eighteen years and six months. The appeal court found as follows:
“Advocate K. did not represent [the applicant] and did not participate in any investigative measures...The search in [the applicant’s] house was authorised by an investigator and a prosecutor. Since at that time [the applicant] was not formally taken into custody legal assistance was not required. He was interviewed as a suspect after his arrest; lawyer Yu. was present at the interview; [the applicant] did not object to the appointment of Mr Yu. as counsel...[The applicant] studied the case file with a lawyer...He did not object to be assisted by lawyer Ro. at the preliminary hearing and was served with copies of the statements of appeal submitted by his co-defendants...”
The appeal court also noted that the applicant had been present at the appeal hearing and had made submissions to the court; that “the applicable legislation [did] not require a court of appeal to appoint counsel”.
17. The judgment became final on 18 June 2004. On 28 July 2004 the applicant was transferred to prison no. 10 in the town of Rubtsovsk to serve his prison term.
18. In May 2008 the deputy Prosecutor General of the Russian Federation lodged a request for supervisory review of the judgment of 18 June 2004. The request reads as follows:
“As can be seen from the case file, [the applicant] had asked that the appeal court designate a legal-aid lawyer and admit his mother and brother as lay defence representatives. An adjournment had been ordered to enable [the applicant’s] father to retain counsel.
At the same time, the appeal court stated that the applicable legislation did not require a court of appeal to appoint counsel. In the same proceedings, Y., who had assisted [the applicant] at first instance, informed the court of appeal that she had not been retained for the appeal proceedings and would no longer represent [the applicant].
Despite this, the appeal court did not take any measures to provide [the applicant] with counsel and held an appeal hearing without [the applicant being represented by] counsel...This omission was capable of affecting the conclusions made by the appeal court.”
19. On 19 June 2008 a judge of the Supreme Court of Russia examined this request and held that the case should be submitted to the Presidium of the Supreme Court. On an unspecified date, the applicant was brought from Rubtsovsk prison (in the Altay Region) to a remand centre in Moscow on the instructions of the Supreme Court. In October 2008 the applicant was authorised to receive visits from his father, who had been admitted as a lay defence representative in the supervisory review proceedings. Ms O., who had been appointed by the Supreme Court as the applicant’s counsel, also visited him in the remand centre.
20. The Presidium of the Supreme Court of Russia heard lawyer O., the applicant and his father. By a ruling of 15 October 2008, the Presidium court set aside the judgment of 18 June 2004 and ordered a fresh appeal hearing. The court held as follows:
“As can be seen from the case file, [the applicant] had asked that the appeal court designate a legal-aid lawyer and admit his mother and brother as lay defence representatives. An adjournment was ordered to enable [the applicant’s] father to retain counsel.
At the same time, the appeal court stated that the applicable legislation did not require a court of appeal to appoint counsel. In the same proceedings, Y., who had assisted [the applicant] at first instance, informed the court of appeal that she had not been retained for the appeal proceedings and would no longer represent [the applicant].
Despite this, the appeal court did not take any measures to provide [the applicant] with counsel and held an appeal hearing without [the applicant being represented by] counsel...This omission was capable of affecting the conclusions made by the appeal court.”
By a separate ruling the applicant was required to pay legal fees of 7,161 Russian roubles (RUB) for O.’s services rendered in the supervisory review proceedings.
21. On 10 November 2008 the case file was submitted to the appeal section of the Supreme Court; a hearing was scheduled for 25 November 2008. The applicant asked that O. be appointed as his counsel in the appeal proceedings and that O. be assisted by his parents and a former cellmate, still in prison, as lay defence representatives. Lastly, the applicant unsuccessfully sought that he be afforded time to study the case file again and that counsel’s fees be borne by the State.
22. On 11 November 2008 the Supreme Court dispatched telegrams to the applicant’s parents and to lawyer Y., who had lodged the statement of appeal on behalf of the applicant in late 2003 or early 2004 (see paragraph 13 above). They were thereby informed of the date and time of the appeal hearing listed for 25 November 2008. On 13 or 14 November 2008 the applicant was also informed. According to the applicant, Y. was not informed of the appeal hearing listed for 25 November 2008. The applicant states that he did not have contact with her after 2004.
23. On an unspecified date, A., a lawyer, was appointed by the Supreme Court to provide legal assistance to the applicant in the appeal proceedings. According to the applicant, he was not aware of this appointment, and A. did not visit him in the Moscow detention facility or discuss the defence position with him. He first met her at the court hearing on 25 November 2008.
24. The applicant participated in the hearing on 25 November 2008 by way of a video and audio link from the Moscow detention facility. The applicant’s father (admitted as a lay defence representative), A. and the prosecutor were present in the courtroom. According to the applicant, A.’s participation in the appeal hearing was limited to making a supporting statement in relation to Y.’s statement of appeal.
25. The appeal court rejected the applicant’s father’s request for an adjournment in order to ensure O.’s presence in the courtroom (see also paragraph 20 above). The court also dismissed requests concerning the admission of the applicant’s mother and former cellmate as lay defence representatives. The court held as follows:
“Article 50 of the Code of Criminal Procedure authorises a defendant to choose and retain a lawyer as paid counsel or counsel is appointed by a court of appeal under Article 51 of the Code...Since [the applicant] has not retained any counsel, the court appointed lawyer A., who studied the case file for several days before the hearing...It is also noted that, as explained by the lay representative, [the applicant’s mother] is absent for health reasons and that [the applicant’s cellmate] is serving a sentence of imprisonment...”
26. According to the respondent Government, in 2008 the case file comprised nine volumes, compared to six volumes during the proceedings in 2003 and 2004. The Government submitted that in the first round of proceedings, the applicant had been afforded adequate opportunity to study the material (see paragraph 9 above), had been provided with a copy of the indictment and a copy of the trial judgment, and had been given an opportunity to study the transcript of the trial and other materials. Volumes 7 to 9 of the case file contained, inter alia, the following documents: the transcript of the trial; statements of appeal lodged by the defendants and their lawyers in 2003 and 2004; the prosecutor’s observations in reply; and the applicant’s motions and applications to the courts made after the appeal hearing in 2004 and in relation to the 2008 reopening.
27. According to the applicant, in November 2008 he was not afforded an opportunity to have knowledge of additional statements of appeal lodged by his co-defendants and their counsel or certain submissions made by the public prosecutor.
28. By judgment of 25 November 2008, the Supreme Court amended the trial judgment of 20 November 2003 by applying more favourable legislation which had entered into force after 2003. In particular, the appeal court reduced the applicant’s prison term to eighteen years and removed an additional order for confiscation of property.
29. Lawyer A. applied for payment of her fees covering five working days, including time spent studying the case file and providing legal assistance at the appeal hearing. By a decision of 25 November 2008 the Supreme Court awarded her RUB 5,967.50 against the State; the applicant was required to repay this sum to the State. The appeal court held as follows:
“Advocate A. studied the case file for four days and then participated in the appeal hearing before the Supreme Court. According to [the applicable legislation] one day of service in proceedings before the Supreme Court should be paid 1,193.50 roubles. Thus, the sum to be paid for five days amounts to 5,967.50 roubles.”
30. On an unspecified date, the applicant lodged an application for supervisory review of the judgments of 20 November 2003 and 25 November 2008. He complained that during the appeal proceedings in 2008 he had not been afforded an opportunity to have access to the materials in the case file; the appeal court had not appointed O. as counsel and had not adjourned the hearing. On 13 August 2009 the Supreme Court rejected the applicant’s complaints as follows:
“The defence’s requests were properly examined and rejected in the appeal proceedings. There were no fundamental defects in the appeal proceedings, which could justify annulment or amendment of the court decisions.”
31. From 5 to 18 March 2003 the applicant was detained in a temporary detention centre in Barnaul. The applicant states that he had been kept in an overcrowded cell, which had afforded less than two square metres of personal space per detainee. He had not been provided with a bed, bedding or items of personal hygiene; no arrangement for washing clothes had been made. The toilet had not been separated from the living area. The cell windows had been covered with metal shutters limiting access to air and natural light. The cell had been excessively cold and damp. The applicant had been fed twice a day and the food had been poor quality. He had not been allowed to have any stationery or paper in the cell.
32. The Government submitted that the applicant had been kept, together with three to six other detainees, in a cell measuring twenty-two square metres. Although there had been no proper beds, the applicant had been given a mattress and could sleep on a wooden deck. No bedding had been provided. The remaining conditions of detention had been acceptable and in compliance with the applicable national standards and regulations.
33. The applicant was subsequently detained in Barnaul remand centre, apparently in acceptable conditions.
34. From 28 July 2004 to late 2008 the applicant was kept in prison no. 10 in the town of Rubtsovsk. In late 2008 he spent several months in a Moscow detention facility. He was then brought back to the prison. In late 2009 the applicant was transferred to prison no. 3 in the Altay Region.
35. According to the applicant, he was afforded less than two square metres of the floor space; he was placed in the same cell or dormitory as smokers, despite his asthma. It appears that the applicant has chronic obstructive pulmonary disease, a progressive narrowing of the airways resulting in limitation of the flow of air to and from the lungs and causing shortness of breath. Apparently, the applicant also suffers from other diseases such as syphilis, hypotrophy and encephalopathy. After two stays in hospital, the medical staff classified his condition as “satisfactory” and stable, in that it was not worsening (“unstable remission”). However, the disability commission refused to afford the applicant any disability benefits. As can be seen from the medical file, the applicant was provided with medical treatment and nutrition.
36. The toilet facilities were located in an open courtyard seven metres away from the dormitory, and were dirty and unheated in winter; he was not provided with sufficient nutrition or adequate medical assistance. Allegedly, on several occasions in 2004 and 2006 the applicant had not been allowed to receive visits from his family.
37. On several occasions the applicant had been detained in appalling conditions in punishment cells and special cells (ПКТ). The applicant had been afforded around two square metres of cell space in ordinary cells in the prison for several relatively short periods of time in 2005 and 2006. These cells had had no functioning ventilation. The applicant had been afforded forty minutes of outdoor exercise per day during the periods of his detention in these cells.
38. The Government submitted that under the Code concerning the Service of Sentences a convicted detainee is to be afforded no less than two square metres of floor space. Since July 2004 the applicant had been kept in large dormitories measuring between 220 and 238 square metres together with 103 to 111 other inmates. Thus, he had been afforded an average of 2.3 square metres of floor space in the living areas of the dormitories. The windows had not been covered with any metal shutters or wooden plates. Each dormitory had had five windows affording sufficient access to natural light. Each dormitory had had a system of light, heating, ventilation and water supply. The toilets had been situated in separate buildings and had been constructed in a way as to secure sufficient privacy. The applicant had been provided with individual bed and bedding in all dormitories. The applicant had been properly fed, in compliance with statutory standards. The Government submitted a number of official statements, logbooks and other documents in support of their above submissions.
39. As can be seen from the available documents, between June 2005 and December 2007 the applicant had spent varying periods of time (three to thirty days, on average) in punishment cells. At times, when he had been detained with several other prisoners in such cells, he had been afforded less than three square metres of cell space.
40. The applicant complained to the trial and appeal courts in his criminal case of the allegedly appalling conditions of his detention. It appears that those complaints met with no response.
41. In 2004 the applicant sought to obtain from the head of the temporary detention centre an official statement concerning the conditions of his detention in 2003. In a letter of 23 August 2004, the official stated that the applicant had been held in a cell measuring twenty-four square metres together with four to seven other inmates.
42. The applicant also complained to the local prosecutor’s office but received no reply. In August 2004 he brought court proceedings under Article 125 of the Code of Criminal Procedure (“the CCrP”). On 28 September 2004 the Tsentralniy District Court of Barnaul terminated the proceedings, indicating that the applicant should have used a different procedure for his complaint. The applicant appealed. On 16 November 2004 the District Court invited the applicant to lodge a statement of appeal in conformity with the requirements of the CCrP within ten days of having received the court’s decision. It appears that the applicant received the District Court’s decision on 26 November 2004.
43. In separate proceedings, the applicant complained of an alleged refusal to allow a visit from his mother. His claim was not examined on procedural grounds.
44. On 3 April 2006 the applicant submitted a letter addressed to the Court to the prison correspondence unit. On 13 April 2006 the letter was registered under no. 16/4-0-8. In reply to a request made by the applicant in October 2006, the Registry of the Court informed the applicant that the letter had not been received.
45. It appears that in May 2006 the applicant gave a copy of his letter to his mother and asked her to send it to the Court. According to the applicant, she was subjected to a search before leaving the prison and the letter was seized. On 16 June 2006 the letter was returned to the applicant.
46. On an unspecified date the applicant was placed in a punishment cell, allegedly as a result of a violation of the internal rules concerning the dispatch of correspondence.
47. On 7 June 2006 the applicant lodged a complaint with the Prosecutor’s Office of the Altay Region. It appears that it was forwarded to another prosecutor’s office and rejected as unfounded.
48. On 27 October 2006 the applicant submitted another letter addressed to the Court to the prison correspondence unit. On 16 November 2006 the letter was registered under no. 16/4-0-54.
49. According to the Government, the correspondence logbooks of prison no. 10 showed that since 2004 the applicant had submitted over 149 letters with or without annexes for dispatch, of which three letters had been addressed to the Court in 2004 and two letters in 2005. In 2006 he had submitted four letters to the Court for dispatch. All of the letters had been dispatched.
50. According to the applicant, from July 2008 onwards he had not been able to maintain contact with Mr P. Finogenov, his representative before the Court, either through correspondence or by having a meeting with him in Moscow remand centre or another detention facility, including prison no. 10 in the Altay Region.
51. Article 51 of the Code of Criminal Procedure (“the CCrP”) establishes that counsel shall be appointed by an investigator, prosecutor or a court if, inter alia, the accused faces serious charges carrying a term of imprisonment exceeding fifteen years, life imprisonment or the death penalty. Counsel shall be appointed if the accused has not retained a lawyer.
52. In a decision dated 18 December 2003 (no. 497-0), the Constitutional Court held that nothing in the wording of Article 51 suggested that it was inapplicable to appeal proceedings. That position was subsequently confirmed and developed in decisions (nos. 251, 252, 253, 254, 255-О-П, 257-О-П, 276-O-П) delivered by the Constitutional Court on 8 February 2007. It found that free legal assistance in appellate proceedings should be provided on the same grounds as during earlier stages of proceedings, on the defendant’s request or if mandatory (as in the situations listed in Article 51). No limitation of the right to legal assistance was allowed unless the person concerned waived this right.
53. Article 131 of the CCrP provided that litigation costs were to be borne by the parties to the proceedings or by the State. Such costs included sums due to a lawyer for legal assistance if that lawyer had been appointed by the State. Article 132 provided that litigation costs had to be paid by a convict or by the State. A court was empowered to order a convict to pay costs, except for sums paid to a lawyer if the court had previously rejected the defendant’s waiver of counsel and the lawyer had been appointed by the State. The State was liable for costs if the person concerned was indigent. The court could also absolve the person concerned from the liability for costs or reduce their amount.
54. The Russian Government’s decree no. 400 of 4 July 2003, as amended in 2007 and 2008, provides that a lawyer providing free legal assistance in criminal proceedings should be paid between RUB 298 and RUB 1,193 per day of service by the State, depending on the complexity of the case, the degree of jurisdiction, the gravity of the charges and the volume of the case file. Services remunerated include work at court hearings and in remand centres (following Supreme Court decision no. KAC08-667 of 23 December 2008) and related transport expenses (following Constitutional Court decision no. 289-О-П of 5 February 2009).
55. Pursuant to the Code of Advocates’ Professional Ethics 2003, an advocate should withdraw from any agreement to provide legal advice, if, after having agreed to provide advice to a client (except during a preliminary investigation or trial proceedings) it becomes clear that he cannot provide advice to that client. The advocate should notify his client thereof in advance, if at all possible (section 10). An appointed or privately-retained advocate in criminal proceedings cannot withdraw from his agreement to provide advice to a client and must continue to represent the client until the stage of drafting and lodging any statement of appeal against the trial judgment (section 13 § 2). The advocate should appeal against a trial judgment upon the client’s request, or if (i) there are legal grounds mitigating the sentence, (ii) the client is a juvenile or has a mental handicap, and (iii) the trial court disagreed with counsel and imposed a heavier sentence or convicted his client of a more serious offence (section 13 § 4). The advocate should, as a rule, appeal against a trial judgment on grounds (ii)-(iii) above or if the advocate considers that there are legal grounds mitigating the sentence (section 13 § 4 in fine). The above provisions were amended in 2005 and 2007 to read as follows:
“2. An appointed or privately-retained advocate in criminal proceedings cannot withdraw from his agreement to provide legal advice to a client, except in cases indicated by the law, and shall defend the client, including, if necessary, by drafting and lodging a cassation appeal against the trial judgment....
4. An advocate shall appeal against the trial judgment (i) if so requested by his client, (ii) if there are grounds for setting that judgment aside or for amending it in favour of his client, (iii) as a rule, if the court disagreed with the advocate and imposed a heavier sentence on or convicted the juvenile of a more serious offence...”
56. By decision no. 455-О-О of 15 July 2008, the Constitutional Court held that Article 47 of the CCrP should be interpreted as allowing the defence to have knowledge of the written observations or comments submitted by the prosecution in reply to the defendant’s statement of appeal. By decision no. 856-О-О of 20 November 2008, the Constitutional Court held that Article 47 of the CCrP should be interpreted as allowing a convicted person to seek, in person or through counsel, access to the criminal case file, even after the closure of the trial.
57. Under the Code of Civil Procedure, a statement of claim should inter alia indicate the nature of the violation of the claimant’s right or interest, plea for relief, the relevant circumstances and evidence confirming those circumstances (Article 131). A statement of claim should be accompanied by a document proving payment of a court fee (Article 132). Article 333.36 of the Tax Code contains a list of court actions and claimants who are entitled to a waiver of a court fee requirement. None of the grounds cited therein is related to a claimant’s indigence. By rulings of 13 June 2006 (no. 272-О) and 7 February 2008 (no. 226-О-О), the Constitutional Court declared that provision unconstitutional in so far as a court could not grant a request for a fee waiver on account of indigence.
VIOLATED_ARTICLES: 13
3
6
VIOLATED_PARAGRAPHS: 6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-b
6-3-c
NON_VIOLATED_ARTICLES: 3
34


ITEMID: 001-61142
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF VAN KUCK v. GERMANY
IMPORTANCE: 1
CONCLUSION: Violation of Art. 6-1;Violation of Art. 8;No separate issue under Art. 14;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings
JUDGES: Ireneu Cabral Barreto
TEXT: 8. The applicant was born in 1948 and lives in Berlin. At birth, she was registered as male, with the forenames Bernhard Friedrich.
9. In 1990 the applicant instituted proceedings before the Schöneberg District Court, asking it to change her forenames to Carola Brenda.
10. On 20 December 1991 the District Court granted the applicant’s request. The court found that the conditions under section 1 of the Transsexuals Act (Gesetz über die Änderung der Vornamen und die Feststellung der Geschlechtszugehörigkeit in besonderen Fällen) were met in the applicant’s case.
11. The District Court, having heard the applicant and having regard to the written opinions of the psychiatric experts Prof. R. and Dr O. of 28 August 1991, and of the psychological expert Prof. D. of 1 September 1991, considered that the applicant was a male-to-female transsexual. It noted that, although Prof. R. and Dr O. had indicated that the applicant was not a typical transsexual, the Transsexuals Act required only that the condition of transsexuality be met, irrespective of the particular form it took. Moreover, the court found that the experts had convincingly shown that the applicant had been for at least the last three years under the constraint of living according to these tendencies and that there was a high probability that the she would not change these tendencies in the future.
12. In 1992 the applicant, represented by counsel, brought an action with the Berlin Regional Court against a German health insurance company. Having been affiliated to this company since 1975, she claimed reimbursement of pharmaceutical expenses for hormone treatment. She further requested a declaratory judgment to the effect that the defendant company was liable to reimburse 50% of the expenses for gender reassignment operations and further hormone treatment. As an employee of the Berlin Land, she was entitled to allowances covering half of her medical expenses; the private health insurance was to cover the other half.
13. On 20 October 1992 the Berlin Regional Court decided to take expert evidence on the questions of whether or not the applicant was a male-to-female transsexual; whether or not her kind of transsexuality was a disease; whether or not the gender reassignment operation was the necessary medical treatment for the transsexuality; and whether or not this treatment was generally recognised by medical science.
14. The psychiatrist Dr H., having examined the applicant in January 1993, delivered his opinion in February 1993. In his conclusions, he confirmed that the applicant was a male-to-female transsexual and that her transsexuality had to be regarded as a disease. He further indicated that gender reassignment surgery was not the only possible medical treatment in cases of transsexuality. In the applicant’s case, he recommended such an operation from a psychiatric-psychotherapeutic point of view, as it would improve her social situation. He noted that gender reassignment surgery was not generally recognised by medical science and that there were several comments in the specialised literature questioning whether the operation was effective; however, it could be assumed that the fact that transsexuals accepted themselves and their bodies contributed to their stabilisation. According to him, many transsexuals reached such stability only after an operation. In his view, this was the case for the applicant and an operation should therefore be approved. The expert concluded that the gender reassignment operation formed part of the curative treatment of a mental disease.
15. On 3 August 1993 the Regional Court, following an oral hearing, dismissed the applicant’s claims. The court considered that under the relevant provisions of the General Insurance Conditions (Allgemeine Versicherungsbedingungen) governing the contractual relations between the applicant and her private health insurance company, the applicant was not entitled to reimbursement of medical treatment regarding her transsexuality.
16. In its reasoning, the court, having regard to the opinion prepared by Dr H. and to the expert opinions prepared in the proceedings before the Schöneberg District Court, considered that the applicant was a male-to-female transsexual and that her condition had to be regarded as a disease. The question whether the treatment in question was recognised by medical science was irrelevant. In the court’s view, hormone treatment and gender reassignment surgery could not reasonably be considered as necessary medical treatments. Having regard to the relevant case-law of the Federal Social Court, the court found that the applicant ought first to have had recourse to less radical means, namely an extensive course of 50 to 100 psychotherapy sessions, as proposed by the psychiatric expert Prof. D. and terminated by the applicant after two sessions (according to the Government, the original manuscript decision referred to twenty-four sessions). The court was not convinced that, on account of the applicant’s resistance to therapy, the intended operation was the only possible treatment.
17. Moreover, the Regional Court found that the evidence did not show conclusively that the gender reassignment measures would relieve the applicant’s physical and mental difficulties, a further criterion for assuming their medical necessity. The expert Dr H. had merely recommended the operation from a psychiatric-psychotherapeutic point of view, as it would improve the applicant’s social situation. His submissions, according to which the effect of gender reassignment surgery was often overrated, did not show that the gender reassignment measures were necessary for medical reasons. The court had not, therefore, been required, of its own motion, to summon the expert to explain his opinion orally.
18. On 11 October 1993 the applicant lodged an appeal with the Berlin Court of Appeal. In the written appeal submissions, the applicant objected to the findings of the Regional Court in so far as they denied the necessity of gender reassignment measures. The applicant also submitted that she had unsuccessfully attended between twenty-four and thirty-five psychotherapy sessions. In this connection, she referred to the written expert opinions and also mentioned the possibility of taking evidence from these experts.
19. In November 1994 the applicant underwent gender reassignment surgery. According to her, having been unfit for work since February 1994, she had agreed with the physician treating her that her suffering would not permit her to await the outcome of the appeal proceedings.
20. On 27 January 1995 the Court of Appeal, following an oral hearing, dismissed the applicant’s appeal. The Court of Appeal valued the claims at stake at 28,455.92 German marks.
21. The Court of Appeal noted that the applicant was a male-to-female transsexual and that, according to the opinion of the expert Dr H., her transsexuality constituted a disease, a matter not in dispute between the parties to the proceedings.
22. Referring to clause 1 of the General Insurance Conditions, the Court of Appeal upheld the Regional Court’s conclusions that the expert Dr H. had not confirmed the necessity of gender reassignment measures. The Court of Appeal had regard to various passages of the expert opinion. Thus, it noted that the expert had considered gender reassignment surgery as one possible medical treatment; however, the question of necessity could not be clearly affirmed given the diverging scientific opinions and results. In his view, consensus existed on the improved psycho-social situation following the change of the sexual role, although the effect of the operation as such was often overrated. In the applicant’s case, the advantages of an operation would, in the expert’s view, prevail, while psychotherapy could not cure the transsexuality on account of the applicant’s chronic narcissistic character structure; even extended psychotherapy was not likely to result in any changes. Turning to the expert’s statement that gender reassignment was not the only possible curative treatment, but recommendable from a psychiatric-psychotherapheutic point of view in order to improve the applicant’s social situation, the Court of Appeal found that, with this cautious formulation, the expert had not clearly affirmed the necessity of an operation. The applicant had therefore failed to prove that the conditions for reimbursement of medical treatment were met in her case. The Court of Appeal added that, while the expert had mentioned that the gender reassignment operation “formed part of the curative treatment of a mental disease”, taking his other statements into account, he had regarded success as rather uncertain. Such a vague hope could not justify the necessity of medical treatment, bearing the aim of health insurance in mind. Thus, the health insurance had to bear only costs of treatment suitable to cure a disease. In the applicant’s case, the expert had explained that gender reassignment measures could not be expected to cure the applicant’s transsexuality, but at best to improve her psycho-social situation. This result was insufficient, as such an improvement did not affect the applicant’s transsexuality as such. With regard to these remaining doubts, the Court of Appeal concluded that the applicant had failed to prove the necessity of her treatment.
23. The Court of Appeal further considered that, in any event, the applicant was not entitled to reimbursement under clause 5.1(b) of the General Insurance Conditions on the ground that she had herself deliberately caused the disease, as argued by the defendant in earlier submissions.
24. Referring to the details of her case history as contained in the expert opinion of Dr O. of August 1991, the Court of Appeal found in particular that the applicant was born as a male child and did not claim that she was a female on account of chromosomal factors. Initially, she had not adopted female behaviour. On account of her male orientation, she had been able to resist feelings that she would have preferred to be a girl and that this would have been more appropriate, and had controlled her emotional life at an early stage.
25. The Court of Appeal considered that the applicant had continued to live as a man. In its view, the applicant’s “fear of bigger boys” at school was not gender-specific. Furthermore, applying to join the armed forces did not indicate female feelings, and she had left the armed forces not because of the feeling that she was a “woman” but because she had experienced degrading treatment. The applicant had married in November 1972, likewise a sign of her male orientation at that time. As from 1981, the spouses had wished to have a child.
26. According to the Court of Appeal, the “turning-point”, as stated by the applicant, had been the moment when, after an unsuccessful operation in 1986, she had realised that she was infertile. The Court of Appeal quoted the following passage from the expert opinion of 1991:
“The recognition that he was infertile is a decisive factor confirming the subsequent transsexual development.”
27. It continued in the following terms:
“Fully aware of this position, the plaintiff concluded for herself: ‘If you cannot have children, you are not a man’, and as a consequence she went one step further and wanted to be a woman from then on. She had never otherwise felt that she was, or that she had to become, a woman, but was merely making a statement that she could do without a penis and still have satisfying relations with his [sic] wife ... Doing without the one is not the same as an irresistible desire for the other. In furtherance of the self-imposed goal of wishing to be a woman, from December 1986 – without medical advice, assistance or instruction – she took female hormones ...
That was deliberate. Having recognised – no doubt painfully – that she could not have children, she decided to distance herself from her past as a man ... It was this deliberate act of self-medication that led the plaintiff ever more to her decision that she wanted to be a woman and to look like one, although it was biologically impossible. This was based on her limited preparedness or ability to reflect critically ... but was wrongfully deliberate because the plaintiff was at all events at that stage in a position to see what the consequences of her ‘self-medication’ would be, and to act accordingly.
...”
28. On 25 October 1996 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint.
29. The German Transsexuals Act (Gesetz über die Änderung der Vornamen und die Feststellung der Geschlechtszugehörigkeit in besonderen Fällen) of 10 September 1980 (Federal Gazette I, p. 1654) was adopted following the decision of 11 October 1978 of the Federal Constitutional Court according to which the refusal to change the sex of a post-operative transsexual in the register of births was an unjustified interference with human dignity and everyone’s fundamental right to develop his personality freely (Reports of the Decisions of the Federal Constitutional Court, BVerfGE 49, pp. 286 et seq.).
30. Sections 1 to 7 of the Transsexuals Act govern the conditions, procedures and legal consequences of a change of a transsexual’s forenames without gender reassignment surgery. Under section 1, persons may request that their forenames be changed if, on account of their transsexual orientation, they no longer feel they belong to the sex recorded in the register of births, they have been for at least three years under the constraint of living according to these tendencies, and if there is a high probability that they will not change this orientation in the future. The competent civil courts have to obtain two medical expert opinions in order to establish whether the medical conditions are met (section 4).
31. Following gender reassignment surgery, section 8 provides for a change of the sex entered in the register of births, if, in addition to the conditions laid down in section 1, the persons concerned are not married and are not able to procreate. The forenames will be changed, if proceedings under section 1 have not yet taken place.
32. Since 1989 the German health insurance system, which previously formed part of the Reich Insurance Code (Reichsversicherungsordnung) of 1911 has been governed by the Social Security Act, Book V, Health Insurance (Sozialgesetzbuch, Fünftes Buch, Gesetzliche Kranken-versicherung), on the basis of the Health (Reform) Act (Gesetz zur Strukturreform im Gesundheitswesen) of 20 December 1988. Subsequently, further reform legislation was enacted. Under the relevant provisions, persons insured under the health system are entitled to medical treatment which is necessary in order to diagnose or to cure a disease, in order to prevent its aggravation or to offer relief for its symptoms.
33. The Federal Social Court, in a decision of 6 August 1987 (Reports of Decisions, BSGE 62, pp. 83 et seq.), confirmed the lower social courts’ decisions that the cost of gender reassignment surgery had to be reimbursed if, in the circumstances of the individual case, the psychophysical state of the transsexual amounted to a disease and if gender reassignment was the sole means of finding relief, psychiatric and psychotherapeutic treatment having remained unsuccessful.
34. The basic rules for private health insurance, as for any other private insurance, are laid down in the Insurance Contract Act (Gesetz über den Versicherungsvertrag) of 1908, as amended. According to section 178.b, private health insurance covers expenses for curative treatment which is medically necessary on account of a disease or injuries suffered as a result of an accident or for other medical services for illness, as far as stipulated in the contract. The insurer is exempted from liability if the insured person has deliberately caused his or her own disease or accident (section 178.l). The contractual relations are standardised in general insurance conditions.
35. The Federal Court of Justice, in a decision of 11 April 1994 (Versicherungsrecht 1995, pp. 447 et seq.), endorsed the lower court’s finding that gender reassignment surgery had to be considered as necessary medical treatment of a disease if the insured person’s change of gender had been recognised under sections 8 et seq. of the Transsexuals Act.
36. In its judgment of 30 April 1996 in P. v. S. and Cornwall County Council (C-13/94, Rec. 1996, p. I-2143), the European Court of Justice (ECJ) found that discrimination arising from gender reassignment constituted discrimination on grounds of sex and, accordingly, Article 5 § 1 of Council Directive 76/207/EEC of 9 February 1976, on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion and working conditions, precluded dismissal of a transsexual for a reason related to a gender reassignment. It held, rejecting the argument of the United Kingdom Government that the employer would also have dismissed P. if P. had previously been a woman and had undergone an operation to become a man, that
“... [w]here a person is dismissed on the ground that he or she intends to undergo or has undergone gender reassignment, he or she is treated unfavourably by comparison with persons of the sex to which he or she was deemed to belong before undergoing gender reassignment.
To tolerate such discrimination would be tantamount, as regards such a person, to a failure to respect the dignity and freedom to which he or she is entitled and which the Court has a duty to safeguard.” (paragraphs 21-22)
37. In its judgment of 17 February 1998, in Lisa Jacqueline Grant v. South-West Trains Ltd (C-249/96, Rec. 1998, p. I-621), the ECJ clarified the resulting position as follows
“... That reasoning, which leads to the conclusion that such discrimination is to be prohibited just as is discrimination based on the fact that a person belongs to a particular sex, is limited to the case of a worker’s gender reassignment and does not therefore apply to differences of treatment based on a person’s sexual orientation.
...
... Community law as it stands at present does not cover discrimination based on sexual orientation, such as that in issue in the main proceedings.
It should be observed, however, that the Treaty of Amsterdam amending the Treaty on European Union, the Treaties establishing the European Communities and certain related acts, signed on 2 October 1997, provides for the insertion in the EC Treaty of an Article 6a which, once the Treaty of Amsterdam has entered into force, will allow the Council under certain conditions (a unanimous vote on a proposal from the Commission after consulting the European Parliament) to take appropriate action to eliminate various forms of discrimination, including discrimination based on sexual orientation.”
The ECJ concluded that the refusal by an employer to allow travel concessions to the person of the same sex with whom a worker has a stable relationship, where such concessions are allowed to a worker’s spouse or to the person of the opposite sex with whom a worker has a stable relationship outside marriage, does not constitute discrimination prohibited by Article 119 of the Treaty or Directive 75/117.
VIOLATED_ARTICLES: 6
8
VIOLATED_PARAGRAPHS: 6-1