ITEMID: 001-93302
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF PLECHANOW v. POLAND
IMPORTANCE: 3
CONCLUSION: Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Preliminary objections dismissed (ratione temporis, ratione materiae, ratione personae, six month period);Violation of P1-1;Just satisfaction reserved
JUDGES: David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
TEXT: 6. The applicants, Jerzy, Ariadna and Andrzej Plechanow, are Polish nationals who were born in 1953, 1924 and 1955 respectively and live in Warszawa.
7. The applicants’ predecessor owned a plot of land with a residential building situated in Warsaw. The applicants are his heirs.
8. By virtue of the Decree of 26 October 1945 on the Ownership and Use of Land in Warsaw (“the 1945 Decree”) the ownership of all private land was transferred to the City of Warsaw.
9. The applicants’ predecessor requested to be granted the right of temporary ownership (własność czasowa) of the property pursuant to section 7 of the 1945 Decree.
10. On 6 January 1964 the Board of the Warsaw National Council (Prezydium Rady Narodowej) refused the request. The Board also stated that the ownership of all buildings situated on the property had been transferred to the State Treasury. The property was subsequently divided into smaller plots.
11. Between 1975 and 1992 the State Treasury sold several apartments in the residential building (together with shares in the right of perpetual use of the land) to third parties.
12. In 1991, 1994 and 1995 the Warsaw Governor declared that on 27 May 1990 the Warsaw Municipality had acquired ex lege the ownership of the plots of land and the building thereon (with the exception of the previously sold apartments).
13. On 12 March 1997 the Board of the Praga-Południe District of the Warsaw-Centre Municipality adopted a resolution on the basis of which it published a list of flats which could be sold to the tenants. In September and November 1997 they sold two apartments.
14. On 5 March 1998 the Praga-Południe District Office informed the applicants of the above resolution and of the possibility of exercising a right of pre-emption in respect of the remaining flats. The right of pre-emption had been introduced as from 1 January 1998 on the basis of section 34 of the Act of 21 August 1997 on the management of real estates (ustawa o gospodarce gruntami).
15. On 18 March 1998 the applicants informed the municipality that the third applicant would buy the flat he had occupied so far. At the same time they requested that the further sale of other flats be stayed. They enclosed a decision of the Warsaw District Court of 5 March 1991 declaring them to be heirs of F.P., K.P. and P.P.
16. On 17 June 1998 the municipality allowed the applicants’ request.
17. On 30 November 1999 the Local Government Board of Appeal (Samorządowe Kolegium Odwoławcze) declared the decision of 6 January 1964 null and void in respect of part of the property. However, the Board could not annul the decision in respect of the remaining part of the property in question, since the ownership rights to 19 apartments and respective shares in the right of perpetual use of the land had been sold in the meantime to third parties. Thus, in view of the irreversible legal consequences of the 1964 decision, the Board only declared that, in this respect, the decision had been issued in breach of law.
18. The Board noted that the obligations of the Warsaw National Council resulting from a breach of law had been taken over by the Warsaw Municipality.
19. The Board further noted that its decision entitled the applicants to seek compensation for damage caused by the administrative decision having been issued in breach of law.
20. In March 2000 the applicants lodged compensation claims with the Mayor of the Warsaw District (Starosta Powiatu Warszawskiego) and the President of Warsaw in respect of the relevant 19 apartments.
21. On 9 June 2000 the Mayor of the Warsaw District transferred the claim to the Warsaw Local Government Board of Appeal in view of the latter organ’s competence. In November 2000 and December 2000 the Board issued several decisions concerning particular apartments in which it refused to award compensation.
22. On 21 December 2000 the applicants lodged compensation claims with the Warsaw Regional Court against the Warsaw municipality under Article 160 of the Code of Administrative Procedure.
23. On 21 March 2002 the Regional Court dismissed the action. The court acknowledged that the applicants had sustained damage as a result of the 1964 decision (the court heard evidence, including an expert witness, who estimated the loss at PLN 1,025,970). However, the court eventually found that the State Treasury should have been sued instead of the municipality. The court noted that according to the Supreme Court judgment of 7 January 1998 the municipality had the legal capacity to be sued for compensation for damage resulting from an administrative decision issued before 27 May 1990. However, in the court’s view, this interpretation had become obsolete in view of the subsequent interpretation of section 36 of the Local Government (Introductory Provisions) Act of 10 May 1990 (Przepisy wprowadzające ustawę o samorządzie terytorialnym i ustawę o pracownikach samorządowych).
24. On 19 June 2002 the applicants’ lawyer lodged an appeal. He referred inter alia to the Supreme Administrative Court resolution of 15 April 1996, OPK 9/96, which, in his opinion, justified the responsibility of the local government administration in the present case. In this context he also invoked section 36 § 2 of the 1990 Local Government (Introductory Provisions) Act and relied on the judgment of the Supreme Court of 7 January 1998 arguing that the firstinstance court had been wrong to consider the judgment obsolete.
25. On 11 April 2003 the Warsaw Court of Appeal dismissed the applicants’ appeal. The court upheld the lower court’s arguments, finding that the State Treasury should have been sued for damages because the Governor (the State’s administration body) was the legal successor of the National Council.
26. The applicants lodged a cassation appeal. They submitted, inter alia, that the judgment was in breach of relevant substantive law on account of an erroneous interpretation and application of the provisions of the Local Government Act. They also invoked Article 393 of the Code of Civil Procedure arguing that the examination of the cassation appeal was justified because:
- the case raised a significant legal issue (i.e. the question to what extent and in respect of which competences the obligations of the national councils had been taken over by communities), and
- the need for an authoritative interpretation of provisions which had been interpreted differently in the courts’ case-law (in particular section 36 § 3 of the 1990 Local Government (Introductory Provisions)), and
- the need to clarify the inconsistency of the Court of Appeal’s judgment with the case-law invoked by the applicants and the alleged guidance provided by the decision of the Local Government Board of Appeal of 30 November 1999.
27. On 10 December 2003 the Supreme Court refused to entertain the cassation appeal. The decision was taken by a single judge sitting in camera. The written reasons provided as follows:
According to Article 393 of the Code of Civil Procedure, when the challenged judicial decision does not manifestly breach the law or the proceedings are not invalid in law (§ 2), the Supreme Court may refuse to entertain a cassation appeal if there is no appearance of a significant legal issue in the case, there is no need for the interpretation of provisions raising serious doubts or causing discrepancies in the courts’ case-law or the cassation appeal is manifestly ill-founded (§ 1).
In the present case none of the circumstances set out in Article 393 § 2 was present and consequently the Supreme Court, having considered the grounds set out in § 1, found it justified to refuse to entertain the cassation appeal.
28. On 8 March 2004 the applicants lodged a constitutional complaint with the Constitutional Court, alleging a breach of their right of access to court and to a fair hearing on account of an erroneous application of Article 393 of the Code of Civil Procedure.
29. On 19 July 2005 the Constitutional Court discontinued the proceedings on the grounds that it had already examined the same issue in its judgment of 31 March 2005 (SK 26/02).
30. On 3 March 2000 the applicants requested the Mayor of Warsaw to grant them the right of perpetual use of the remaining apartments which had not been sold. They relied on the decision of the Warsaw Local Government Board of Appeal of 30 November 1999.
31. On 25 April 2002 the applicants’ lawyer submitted a certificate of the mortgage writer (pisarz hipoteczny) of 24 November 1937 certifying the ownership title of F.P. on that day.
32. The proceedings are pending.
33. A party to civil proceedings could, at the material time, lodge a cassation appeal with the Supreme Court against a judicial decision of a secondinstance court. A party had to be represented by an advocate or a legal adviser.
34. Article 3931 of the Code of Civil Procedure as applicable at that time listed the grounds on which a cassation appeal could be lodged. It read as follows:
“The cassation appeal may be based on the following grounds:
1) a breach of substantive law as a result of its erroneous interpretation or wrongful application;
2) a breach of procedural provisions, if that defect could significantly affect the outcome of the case.”
35. Article 3933 specified the requirements of a cassation appeal. It read in its relevant part:
“§ 1. A cassation appeal should include:
1) an indication of the decision under appeal together with information as to whether the appeal is lodged against this decision in its entirety or in part only;
2) an indication of the grounds for the cassation appeal;
3) arguments showing that its examination would be justified;
4) a motion to have the decision under appeal quashed or amended, specifying also the scope of the motion.”
36. Pursuant to Article 393¹³ the Supreme Court, having allowed a cassation appeal, could quash the challenged judgment in its entirety or in part and remit the case for re-examination. Where the Supreme Court failed to find non-conformity with the law, it dismissed the cassation appeal.
37. Pursuant to Article 3937 a cassation appeal, in principle, was examined during a hearing by a panel of three judges; the court could, however, reject a cassation appeal on formal grounds at a sitting. The judgment or decision had to be accompanied by written reasons.
38. On 24 May 2000 a law was enacted amending the Code of Civil Procedure. It entered into force on 1 July 2000. It introduced, inter alia, the following provision (amended Article 393) – the so-called “pre-judgment” (preliminary assessment of a cassation appeal):
“§ 1. The Supreme Court may refuse to entertain the cassation appeal, if:
1) there is no appearance of any significant legal issue in the case,
2) there is no need for the interpretation of provisions raising serious doubts or causing discrepancies in the courts’ case-law,
3) the appeal is manifestly ill-founded.
§ 2. Paragraph 1 shall not apply if the challenged judicial decision manifestly breached law or when the proceedings are invalid at law.”
39. Pursuant to amended Article 3937 the decision to refuse to entertain a cassation appeal or to reject it on formal grounds could be taken in camera, in a single judge formation.
40. Although the legal provisions did not expressly provide for such a possibility, usually the written reasons accompanying such decisions were limited to a simplified, schematic formula which did not contain any legal analysis, did not indicate the specific grounds for the decision, did not invoke grounds of appeal and did not refer to any facts or circumstances which would allow the identification of a particular case.
41. On 6 February 2005 new provisions on a “cassation complaint” came into effect, replacing the provisions governing the cassation appeal.
42. In its judgment of 31 March 2005 (SK 26/02) the Constitutional Court examined a number of constitutional complaints challenging the provisions of Article 393 of the Code of Civil Procedure.
43. The Constitutional Court held that although the Constitution did not guarantee a right to cassation as such, the fact that it was provided for by the Code of Civil Procedure meant that it had to meet the requirements of the rule of law and procedural justice.
44. The Constitutional Court observed, inter alia, that certain terms describing the conditions which a cassation appeal had to meet under Articles 393 et seq. of the Code (“significant legal issue”, “provisions raising serious doubts or causing discrepancies in the courts’ case-law”, “arguments showing that examination of the cassation appeal would be justified”) were drafted in the broadest terms. It noted that the judicial practice regarding their application had given rise to serious interpretational difficulties and discrepancies in the caselaw of the Supreme Court. The Constitutional Court considered the relevant requirements of Article 393 and their interpretation by the Supreme Court to be vague and subjective and, in practice, known exclusively to the Supreme Court but not to those who wished to lodge a cassation appeal.
45. According to the Constitutional Court, if the conditions for admissibility of a claim (preliminary assessment of a cassation appeal) were formulated in imprecise terms, the right of access to a court could not be exercised effectively because of the risk of arbitrariness of the assessing body.
46. In this context the court criticised, in particular, the practice of “simplified reasons”. It held that the use of open-ended concepts by the legislator could not be considered, in itself, as unconstitutional, as it allowed the courts a certain flexibility, to better-tailor their decisions to circumstances at hand. However, in such case the obligation to substantiate the legal norm was shifted to the stage of its application. This gave the courts a certain discretion which was not to be confused with an absolute freedom from external supervision. Consequently, a general and imprecise procedural clause required a strong justification and indication of specific circumstances.
47. The practice of formulaic justification in the preliminary assessment of a cassation appeal created a situation where nobody could identify how, if at all, the Supreme Court had performed the necessary assessment to substantiate those vague terms. The case-law providing guidance on their application was thus practically non-existent. The court informed the addressee of its decision that the requirements of the given article had not been met, but did not indicate any circumstances which justified this conclusion. As a result, a principle of trust has been breached. Moreover, it was impossible for lawyers in general to recognise the Supreme Court’s understanding of those requirements for the purpose of effectively lodging a cassation appeal in the future.
48. Consequently, the “pre-judgment” did not guarantee procedural predictability to the party, who has lodged a cassation appeal meeting all formal requirements. The right of access to a court had thus been transformed into a pretence of this right.
49. Nevertheless the Constitutional Court found that it was the practice of the Supreme Court that deserved disapproval and not the relevant provisions, and the wording of those provisions could not be considered unconstitutional. In this context the court observed that the practice was not uniform and certain chambers of the Supreme Court justified their decisions in a much more elaborate and substantive way. The court further observed that the challenged provisions had already ceased to exist prior to the delivery of the present judgment.
50. Accordingly, the Constitutional Court refused to decide on the compatibility of those provisions with the Constitution and discontinued the proceedings in this respect.
51. Article 79 § 1 of the Constitution, which entered into force on 17 October 1997, provides as follows:
“In accordance with principles specified by statute, everyone whose constitutional freedoms or rights have been infringed, shall have the right to appeal to the Constitutional Court for a judgment on the conformity with the Constitution of a statute or another normative act on the basis of which a court or an administrative authority has issued a final decision on his freedoms or rights or on his obligations specified in the Constitution.”
52. Article 190 of the Constitution, insofar as relevant, provides as follows:
“1. Judgments of the Constitutional Court shall be universally binding and final.
2. Judgments of the Constitutional Court, ... shall be published without delay.
3. A judgment of the Constitutional Court shall take effect from the day of its publication; however, the Constitutional Court may specify another date for the end of the binding force of a normative act. Such time-limit may not exceed 18 months in relation to a statute or 12 months in relation to any other normative act. ...
4. A judgment of the Constitutional Court on the non-conformity with the Constitution, an international agreement or statute, of a normative act on the basis of which a final and enforceable judicial decision or a final administrative decision ... was given, shall be a basis for re-opening of the proceedings, or for quashing the decision ... in a manner and on principles specified in provisions applicable to the given proceedings.”
53. Article 39 of the Constitutional Court Act reads:
“1. The Court shall, at a sitting in camera, discontinue the proceedings:
1) if the pronouncement of a judicial decision would not serve any purpose or is inadmissible;
2) in consequence of the withdrawal of the application, question of law or constitutional complaint;
3) if the normative act has ceased to have effect ... prior to the delivery of a judicial decision by the Tribunal.
2. If these circumstances come to light at the hearing, the Tribunal shall take a decision to discontinue the proceedings.
3. Item 1 (3) of the present Article does not apply if giving a decision on the compatibility with the Constitution of a normative act which has already lost its validity is necessary for the protection of the constitutional freedoms and rights.”
54. Article 4011 of the Code of Civil Procedure provides that a party to civil proceedings which have ended with a final judgment on the merits can request that these proceedings be re-opened, if the Constitutional Court has found that the legal provision on the basis of which this judgment was given was incompatible with the Constitution. Such a request can be lodged with the competent court within one month from the date of the judgment of the Constitutional Court.
55. The Decree of 26 October 1945 on real property in Warsaw expropriated real property situated in Warsaw and transferred ownership to the municipality of Warsaw.
56. Pursuant to section 33(2) of the Local State Administration Act of 20 March 1950, ownership of property situated in Warsaw was assigned to the State Treasury.
57. A very significant reduction in the State Treasury’s land resources was brought about by legislative measures aimed at reforming the administrative structure of the State.
58. The Local Government (Introductory Provisions) Act of 10 May 1990 (Przepisy wprowadzające ustawę o samorządzie terytorialnym i ustawę o pracownikach samorządowych – “the 1990 Act”), which came into force on 27 May 1990, and other related statutes enacted at that time, re-established local government and municipalities and transferred to them powers that had previously been exercised solely by the local State administration. Pursuant to section 5(1), ownership of land which had previously been held by the State Treasury and which had been within the administrative territory of municipalities at the relevant time was transferred to the municipality.
59. Section 36 § 3 (3) of the Act provides, as far as relevant:
“The State Treasury takes over:
3) obligations and receivables of local bodies of state administration (...) resulting from final and binding court rulings and administrative decisions delivered before 27 May 1990 (...).”
60. Article 155 of the Code of Administrative Procedure permits the amendment or annulment of any final administrative decision at any time where necessary in the general or individual interest, if this is not prohibited by specific legal provisions. In particular, pursuant to Article 156, a final administrative decision is subject to annulment if it has been issued by an authority which had no jurisdiction, or if it is without a legal basis or contrary to the applicable laws.
61. Article 160 of the Code of Administrative Procedure, as applicable at the material time, read in its relevant part:
“A person who has suffered a loss on account of the issuing of a decision in a manner contrary to Article 156 § 1 or on account of the annulment of such a decision shall have a claim for compensation for actual damage, unless he has been responsible for the circumstances mentioned in this provision.”
62. An administrative decision in respect of the compensation claim could be appealed against in a civil court.
63. In its resolution adopted on 11 December 1995 (VI SA 9/95) the Supreme Administrative Court concluded that disputes instituted under Article 7 of the Decree of 26 October 1945 concerning the right of perpetual use of a plot of land presently owned by the municipality, should be resolved by a competent mayor [a local government body].
64. Section 36 § 3 (3) of the 1990 Act raised doubts as to which legal entity was liable for damages caused by an unlawful administrative decision issued before the administrative reform. The problem was subject to divergent judicial interpretation.
65. On 7 January 1998 the Supreme Court delivered a judgment (II CKN 550/97) in which it concluded that the municipality should be sued for compensation for damages caused by an administrative decision delivered before 27 May 1990.
66. On 16 November 2004 a panel of three judges of the Supreme Court adopted a resolution (no. III CZP 64/04), finding that the municipality – and not the State Treasury – had the legal capacity to be sued for damages resulting from an administrative decision issued before 27 May 1990, provided that the decision had been annulled or declared unlawful after that date.
67. In its resolution of 7 December 2006 (no. III CZP 99/06), adopted by a panel of seven judges, the Supreme Court concluded that the State Treasury had the capacity to be sued for damages caused by an administrative decision delivered before 27 May 1990, even if the decision had been annulled or declared null and void after that date. The resolution was adopted following a legal question referred to the Supreme Court by another Court of Appeal having a similar case before it.
68. The Supreme Court confirmed this stance in several subsequent judgments, delivered in cases similar to the present one (see below).
69. On 21 March 2001 the Opolskie Governor declared that the decision of 1983 of the Head of municipality D. had been adopted in breach of law. The plaintiff’s claim for compensation against the State Treasury (Opolskie Governor) was dismissed by the first- and second-instance courts. In particular, the Court of Appeal, invoking the resolution of the Supreme Court of 16 November 2004 (ref no. Ill CZP 64/04), considered that the State Treasury did not have the legal capacity to be sued in that case since municipality D. had taken over its obligations under Article 36 § 1 of the 1990 Introductory Provisions Act.
The Supreme Court quashed the appellate judgment and remitted the case, relying on the above-mentioned resolution of 7 December 2006.
70. In 1951 the Presidium of the Warsaw National Council refused to grant the right of perpetual use of land covered by the operation of the 1945 Decree. Subsequently, the State Treasury sold three flats in the building. On 22 September 1994 the Minister of Construction declared that the decision of 1951 had been adopted in breach of law.
The plaintiffs lodged a civil action for compensation against the State Treasury. The Warsaw Regional Court allowed their claim in part and awarded compensation from the State Treasury.
On 31 January 2006 the Warsaw Court of Appeal amended the first-instance judgment and dismissed the claim against the State Treasury finding that it lacked legal capacity to be sued in the case.
On 14 March 2007 the Supreme Court quashed the appellate judgment and remitted the case, invoking the resolution of 7 December 2006.
71. In its judgment of 27 November 2002 (no. I CKN 1215/00), the Supreme Court ruled that there was a causal link between an administrative decision, taken under the 1945 Decree, refusing to grant the previous owner of a real property (a land with a building) the right of temporary ownership (perpetual use) of that property and the sale of apartments in the building by the State Treasury.
72. On 21 March 2003 the Supreme Court adopted a resolution (no. III CZP 6/03) in which it found that financial loss resulting from a decision under the 1945 Decree refusing to grant the right of perpetual use, which had been issued in breach of law, constituted a loss within the meaning of Article 361 § 2 of the Civil Code and an actual damage within the meaning of Article 160 of CAP.


ITEMID: 001-72317
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF D.H. AND OTHERS v. THE CZECH REPUBLIC
IMPORTANCE: 2
CONCLUSION: No violation of Art. 14+P1-2
TEXT: 8. The applicants’ details are set out in the Appendix.
9. Between 1996 and 1999 the applicants were placed in special schools (zvláštní školy) in Ostrava, either directly or after a period in an ordinary primary school (základní školy). Special schools are a category of specialised school (speciální školy) and are intended for children with learning disabilities who are unable to attend “ordinary” or specialised primary schools. By law, the decision to place a child in a special school is taken by the head teacher on the basis of the results of tests to measure the child’s intellectual capacity carried out in an educational psychology and child guidance centre and requires the consent of the parent or legal guardian of the child.
10. The material before the Court shows that the applicants’ parents had consented to and in some instances expressly requested their children’s placement in a special school. A written decision in the appropriate form was issued by the head teachers of the schools concerned and the applicants’ parents were notified of it. The decisions contained instructions on the right to appeal, a right which none of those concerned exercised.
11. On 29 June 1999 the applicants received a letter from the school authorities informing them of the possibilities available for transferring from a special school to a primary school. It appears that four of the applicants (nos. 5, 6, 11 and 16) were successful in aptitude tests and now attend ordinary schools.
12. In the review and appeals procedures referred to below, the applicants were represented by a lawyer, acting on the basis of signed written authorities from their parents.
13. On 15 June 1999 all the applicants apart from applicants nos. 1, 2, 10 and 12 (see Appendix) asked the Ostrava Education Authority (Školský úřad) to reconsider, outside the formal appeal procedure, the administrative decisions to place them in special schools (přezkoumání mimo odvolací řízení). They argued that their intellectual capacity had not been reliably tested and that their representatives had not been sufficiently informed of the consequences of consenting to their placement in a special school. They therefore asked the Education Authority to revoke the impugned decisions, which they maintained did not comply with the statutory requirements and infringed their right to education without discrimination.
14. On 10 September 1999 the Education Authority informed the applicants that, as the impugned decisions complied with the legislation, they did not satisfy the conditions for bringing proceedings outside the appeal procedure.
15. On 15 June 1999 applicants nos.1 to 12 in the Appendix lodged a constitutional appeal in which they complained, inter alia, of de facto discrimination in the general functioning of the special education system. In that connection, they relied, inter alia on Articles 3 and 14 of the Convention and Article 2 of Protocol No. 1. While acknowledging that they had not appealed against the decisions to place them in special schools, they alleged that they had not been sufficiently informed of the consequences of placement and argued (on the question of the exhaustion of remedies) that their case concerned continuing violations and issues that went far beyond their personal interests.
In their grounds of appeal, the applicants explained that they had been placed in special schools under a practice that had been established in order to implement the relevant statutory rules. In their submission, that practice had resulted in de facto racial segregation and discrimination that was reflected in the existence of two independent educational systems for members of different racial groups, namely special schools for the Roma and “ordinary” primary schools for the majority of the population. That difference in treatment was not based on any objective and reasonable justification, amounted to degrading treatment and had deprived them of the right to education (as the curriculum followed in special schools was inferior and pupils in special schools were unable to return to primary school or to obtain a secondary education other than in a vocational training centre). The applicants argued that they had received an inadequate education and an affront to their dignity and asked the Constitutional Court (Ústavní soud) to find a violation of the rights they had relied on, to quash the decisions to place them in special schools, to order the respondents (the special schools concerned, the Ostrava Education Authority and the Ministry of Education) to refrain from any further violation of their rights and to restore the status quo ante by offering them compensatory education.
16. In their written submissions to the Constitutional Court, the special schools concerned pointed out that all the applicants had been enrolled on the basis of a recommendation from an educational psychology and child guidance centre and with the consent of their representatives; furthermore, the representatives had been duly informed of the relevant decisions and none of them had decided to appeal. According to the schools, the applicants’ representatives had been informed of the differences between the special-school curriculum and the primary-school curriculum. Regular meetings of teaching staff were held to assess pupils (with a view to their possible transfer to primary school). They added that some of the applicants (nos. 5 to 11 in the Appendix) had been advised that there was a possibility of their being placed in primary school.
The education authority pointed out in its written submissions that the special schools had their own legal personality, that the impugned decisions contained advice on the right of appeal and that the applicants had at no stage contacted the schools inspectorate.
The Ministry for Education denied any discrimination and said that parents of Roma children tended to have a rather negative attitude to school work. It asserted that each placement in a special school was preceded by an assessment of the child’s intellectual capacity and that parental consent was a decisive factor. It further noted that there were 18 educational assistants of Roma origin in schools in Ostrava.
17. In their final written submissions, the applicants pointed out (i) that there was nothing in their school files to show that their progress was being regularly monitored with a view to a possible transfer to primary school, (ii) that the reports from the educational psychology and child guidance centres contained no information on the tests that were used and (iii) that their recommendations for placement in a special school were based on grounds such as an insufficient command of the Czech language, an over-tolerant attitude on the part of the parents or an ill-adapted social environment. They also argued that the gaps in their education made a transfer to primary school impossible in practice and that social or cultural differences could not justify the alleged difference in treatment.
18. On 20 October 1999 the Constitutional Court dismissed the applicants’ appeal, partly on the ground that it was manifestly unfounded and partly on the ground that it had no jurisdiction to hear it. It nevertheless invited the competent authorities to give careful and effective consideration to the applicants’ proposals.
(a) With regard to the complaint of a violation of the applicants’ rights as a result of their placement in special schools, the Constitutional Court held that, as only five decisions were actually referred to in the notice of appeal, it had no jurisdiction to decide the cases of the applicants who had not appealed against the decisions concerned.
As to the five applicants who had lodged constitutional appeals against the decisions to place them in special schools (nos. 1, 2, 3, 5 and 9 in the Appendix), the Constitutional Court decided to disregard the fact that they had not lodged ordinary appeals against those decisions, as it agreed that the scope of their constitutional appeals went beyond their personal interests. However, it found that there was nothing in the material before it to show that the relevant statutory provisions had been interpreted or applied unconstitutionally, since the decisions had been taken by head teachers vested with the necessary authority on the basis of recommendations by educational psychology and child guidance centres and with the consent of the applicants’ representatives.
(b) With regard to the complaints of insufficient monitoring of the applicants’ progress at school and of racial discrimination, the Constitutional Court noted that it was not its role to assess the overall social context and found that the applicants had not furnished concrete evidence in support of their allegations. It further noted that the applicants had had a right of appeal against the decisions to place them in special schools, but had not exercised it. As to the objection that insufficient information had been given about the consequences of placement in a special school, the Constitutional Court considered that the applicants’ representatives could have obtained the information by liaising with the schools and that there was nothing in the file to show that they had made any enquiries about the possibility of transferring to a primary school. The Constitutional Court therefore ruled that this part of the appeal was manifestly ill-unfounded.
19. Prior to 18 February 2000, section 19(1) provided that to be eligible for secondary-school education pupils had to have successfully completed their primary-school (základní škola) education.
Following amendment no. 19/2000, which came into force on 18 February 2000, the amended section 19(1) provided that to be eligible for secondary-school education pupils had to have completed their compulsory education and demonstrated during the admission procedure that they satisfied the conditions of eligibility for their chosen course.
20. Section 31(1) provided that special schools (zvláštní školy) were intended for children with learning disabilities that prevented them from following the curricula in ordinary primary schools or in specialised primary schools (speciální základní škola) intended for children suffering from sensory impairment, illness or disability.
21. Article 2 § 4 of the Decree laid down that the following schools were available for children and pupils suffering from mental disability: specialised nursery schools (speciální mateřské školy), special schools, auxiliary schools (pomocné školy), vocational training centres (odborná učiliště) and practical training schools (praktické školy).
22. Article 6 § 2 stipulated that if during the child’s or the pupil’s school career there was a change in the nature of his or her disability or if the specialised school was no longer adapted to the level of disability, the head teacher of the school attended by the child or pupil was required, after an interview with the pupil’s representative, to recommend the pupil’s placement in another specialised school or in an ordinary school.
23. Article 7 stipulated that the decision to enrol or place a child or pupil in, inter alia, a special school was to be taken by the head teacher, provided that the child’s or pupil’s parents or legal guardian consented. The head teacher was entitled to consult sources such as the parents or legal guardian, the school attended by the pupil, educational psychology and child guidance centres, hospitals or clinics, authorities with responsibility for family and child welfare and health centres. The educational psychology and child guidance centre was responsible for assembling all the documents required to reach a decision and required to make a recommendation to the head teacher regarding the type of school.
24. In the section of the report that dealt with the policy aspects of education and training, ECRI stated that public opinion appeared sometimes to be rather negative towards certain groups, especially the Roma/Gypsy community and suggested that further measures should be taken to raise public awareness of the issues of racism and intolerance and to improve tolerance towards all groups in society. It added that special measures should be taken as regards education and training of the members of minority groups, particularly members of the Roma/Gypsy community.
25. With regard to the access of Roma children to education, ECRI said in this report that it was concerned that Roma children continued to be sent to special schools which, besides perpetuating their segregation from mainstream society, severely disadvantaged them for the rest of their lives. The standardised test developed by the Czech Ministry of Education for assessing a child’s mental level was not mandatory and was only one of a battery of tools and methods recommended to the psychological counselling centres. As far as the other element required in order to send a child to a special school – the consent of a parent or legal guardian of the child – ECRI observed that parents making such decisions continued to lack information concerning the long-term negative consequences of sending their children to such schools, which were often presented to parents as an opportunity for their children to receive specialised attention and be with other Roma children. ECRI also said that it had received reports of Roma parents being turned away from regular schools.
ECRI also noted that the School Act had entered into force in January 2000 and provided the opportunity for graduates of special schools to apply for admission to secondary schools. According to various sources, that remained largely a theoretical possibility as special schools did not provide children with the knowledge required in order for them to attend regular schools. There were no measures in place to provide additional education to students who had gone through the special school system to bring them to a level where they would be adequately prepared for regular secondary schools.
ECRI had received very positive feedback concerning the success of ‘zero grade courses’ (preparatory classes) at preschool level in increasing the number of Roma children who attended regular schools. It expressed its concern, however, over a new trend to maintain the system of segregated education in a new form – this involved special classes in mainstream schools. In that connection, a number of concerned actors were worried that the new draft Schools Act created the possibility for even further separation of Roma through the introduction of a new category of special programmes for the ‘socially disadvantaged’.
Lastly, ECRI noted that despite initiatives taken by the Ministry of Education (assistant teachers, training programmes for teachers, revision of the primary school curriculum), the problem of low levels of Roma participation in secondary and tertiary level education described by ECRI in its second report persisted.
26. The document stated that the Government had adopted measures in the education sphere that were focused on providing suitable conditions especially for children from socially and culturally disadvantaged environments, in particular the Romany community, by opening preparatory classes in elementary and special schools. It was noted that “Romany children with average or above-average intellect are often placed in such schools on the basis of results of psychological tests (this happens always with the consent of the parents). These tests are conceived for the majority population and do not take Romany specifics into consideration. Work is being done on restructuring these tests”. In some special schools Romany pupils made up between 80% and 90% of the total number of pupils.
27. The Czech Republic accepted that the Roma were particularly exposed to discrimination and social exclusion and said that it was preparing to introduce comprehensive anti-discrimination tools associated with the implementation of the EU Council Directive implementing the principle of equal treatment. New legislation was due to be enacted in 2004.
In the field of Roma education, the report said that the State had taken various measures of affirmative action in order to radically change the present situation of Roma children. The Government regarded the practice of referring large numbers of Roma children to special schools as untenable. The need for affirmative action was due not only to the sociocultural handicap of Roma children, but also to the nature of the whole education system, its inability to sufficiently reflect cultural differences. The draft new Schools Act would bring changes to the special education system (transforming “special schools” into “special primary schools”), providing the children targeted assistance in overcoming their sociocultural handicap. These included preparatory classes, individual study programmes for children in special schools, measures concerning preschool education, an expanded role for assistants from the Roma community and specialised teacher-training programmes. As one of the main problems encountered by Roma pupils was their poor command of the Czech language, the Ministry of Education considered that the best solution (and the only realistic one) would be to provide preparatory classes at the preschool stage for children from a disadvantaged sociocultural background.
The report also cited a number of projects and programmes that had been implemented nationally in this sphere (‘Support for Roma integration’, ‘Programme for Roma integration/Multicultural education reform’, and ‘Reintegrating Roma special school pupils in primary schools’).
NON_VIOLATED_ARTICLES: 14
P1
NON_VIOLATED_PARAGRAPHS: P1-2


ITEMID: 001-57720
LANGUAGEISOCODE: ENG
RESPONDENT: BEL
BRANCH: CHAMBER
DATE: 1991
DOCNAME: CASE OF BORGERS v. BELGIUM
IMPORTANCE: 2
CONCLUSION: Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings
JUDGES: C. Russo;N. Valticos;R. Pekkanen
TEXT: 9. Mr André Borgers, a Belgian national residing at Lummen (Belgium), is a lawyer who currently practises at the Hasselt Bar.
10. On 8 November 1981 he was elected provincial counsellor and thereupon tendered his resignation from the post of substitute district judge (juge de paix suppléant) which he had held since 12 April 1976, but which under the Judicial Code was incompatible with his new elected office.
11. On 16 June 1981 he had appeared before the Antwerp Court of Appeal charged with forgery and using forged documents, the latter court having jurisdiction by virtue of the privileges which he enjoyed in this respect as a judicial officer. On 19 May 1982 it imposed on him a suspended sentence of six months’ imprisonment and fined him 40,000 Belgian francs.
12. The applicant appealed to the Court of Cassation on points of law. He argued that in its judgment convicting him the Court of Appeal had failed to give an adequate statement of its reasons and to attach sufficient weight to the records of the investigating judge’s examinations; he contended further that the judgment had been delivered following a violation of the rights of the defence. In accordance with usual practice, the procureur général’s department of the Antwerp Court of Appeal did not submit a memorial in reply.
13. On 20 March 1984 the Court of Cassation allowed the appeal and quashed the contested decision on the ground that an adequate statement of the reasons on which it was based had not been given. Previously, at the hearing, it had heard the report of the judge rapporteur, Mr d’Haenens, and the concurring submissions (conclusions) of Mr Tillekaerts, the avocat général (a member of the procureur général’s department). The latter had also attended the deliberations in accordance with Article 1109 of the Judicial Code (see paragraph 17 below).
14. The Ghent Court of Appeal, to which the case had been remitted, convicted the applicant on 14 November 1984 and imposed on him identical sanctions to those resulting from the earlier decision (see paragraph 11 above). Mr Borgers again appealed to the Court of Cassation; he complained inter alia that the judgment in question had failed to state sufficient reasons and had misinterpreted the provisions of criminal law concerning forged documents and statutory limitation.
15. His appeal was dismissed on 18 June 1985, following a hearing at which the Court heard the report of the judge rapporteur, Mr d’Haenens, and the concurring submissions of Mr Tillekaerts, the avocat général, who had again participated in the deliberations (see paragraph 17 below).
16. According to Article 141 of the Judicial Code:
"The procureur général at the Court of Cassation shall not act as prosecuting authority except where he has instituted proceedings in which the decision on the merits falls to the Court of Cassation."
This provision replaced Article 37 of the Prince Sovereign’s Decree of 15 March 1815, which was in issue in the Delcourt case (already cited, see paragraph 3 above) and which was worded as follows:
"Even in criminal proceedings, the procureur général at the court cannot be regarded as a party; his role is only to make submissions (conclusions), except where he has himself appealed. In the latter event, he shall put the prosecution case (réquisitoire) in pleadings which, filed with the registry, shall be forwarded without further formalities to the rapporteur appointed by the First President and then distributed with the report to the members of the procureur général’s department."
It is true that where the Court of Cassation hears a case on its merits, the procureur général’s department assumes the role of a party, but these instances are quite rare. They include the trial of ministers (Article 90 of the Constitution), civil proceedings brought against a judge in his official capacity (la prise à partie) (Article 613, 2o, and Articles 1140 to 1147 of the Judicial Code) and disciplinary proceedings against certain judicial officers (Articles 409, 410 and 615 of the same Code).
Apart from these exceptional circumstances, the procureur général’s department at the Court of Cassation carries out, with full independence, the duties of adviser to the Court. In this capacity, it is by no means unusual for it to express the opinion that the court should dismiss an appeal lodged by the prosecuting authorities of the lower court or should allow an appeal by an accused; indeed it may even raise an argument against the conviction or sentence of its own motion.
17. On the procedure to be followed in the Court of Cassation, whether for civil or criminal proceedings, the Judicial Code provides as follows:
"After the report has been read out, submissions are taken from the lawyers present at the hearing. Their pleadings shall relate exclusively to the issues of law raised in the grounds for appeal or to the pleas in bar put forward against the appeal.
The procureur général’s department shall then make its submissions, whereafter no further documents shall be accepted."
"The procureur général or a member of his department shall be entitled to attend the deliberations unless the appeal on a point of law has been lodged by the procureur général’s department itself; he shall not be entitled to vote in the deliberations."
The procureur général’s department may file an appeal on a point of law either "in the interests of the law" (Articles 1089 and 1090 of the Judicial Code and Article 442 of the Code of Criminal Procedure) or following a complaint by the Minister of Justice (Article 1088 of the Judicial Code and Article 441 of the Code of Criminal Procedure).
The rule which, in such cases, requires the exclusion from the Court’s deliberations of the procureur général or his representative already applied under the Prince Sovereign’s Decree of 15 March 1815 (see paragraph 16 above), but it was not expressly laid down therein (see the transcript of the hearing of 30 September 1969 in the Delcourt case, Series B, no. 9, p. 215). It merely provided, in Article 39:
"In cassation proceedings the procureur général or a member of his department shall have the right to be present, without voting, when the court retires to consider its decision."
18. Under Article 400 of the Judicial Code the disciplinary hierarchy applying to the officials of the ministère public is as follows:
"The Minister of Justice shall exercise supervisory authority over all the officials of the ministère public, the procureur général at the Court of Cassation over his counterparts at the Courts of Appeal and the latter over public prosecutors and their departments in their courts and the lower courts as well as over State counsel in the Industrial Appeals Tribunals, the crown prosecutors and the State counsel in the industrial tribunals and their substitutes."
The above provision replaced section 154 of the Judiciary (Organisation) Act of 1869, referred to in the Delcourt judgment (cited above, Series A no. 11, p. 16, para. 30).
Article 414 of the Judicial Code states as follows:
"The procureur général at the Court of Appeal may impose on the subordinate officials of the ministère public the sanctions of a warning, a reprimand or a reprimand with suspension of salary.
The procureur général at the Court of Cassation shall have the same powers in regard to persons holding the office of avocat général at that court and those holding the office of procureur général at the Courts of Appeal.
The Minister of Justice may likewise warn and reprimand all the officials of the ministère public or recommend to the King their suspension or their revocation."
19. On the question of disciplinary proceedings against judges and the role in this matter of the procureur général at the Court of Cassation, the following provisions of the Judicial Code may be cited:
"Only the Court of Cassation may hear disciplinary proceedings to remove a judge from office."
"Substitute judges" - such as Mr Borgers from 1976 to 1981 (see paragraph 10 above) - "are, in that capacity, subject to the same disciplinary authorities as full judges."
"[...] disciplinary proceedings [...] against judges [...] shall be instituted by the competent authority of its own motion; if their object is the issue of a warning, they shall be instituted by the authority empowered to order such a measure; in other cases, they shall be instituted by the first president of the competent court. Disciplinary proceedings may always be instituted at the instance of officers of the ministère public."
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-68599
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: HUSSEIN MOSSI AND OTHERS v. SWEDEN
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The first applicant, Mr Fofana Hussein Mossi, born in 1962, is a national of the Democratic Republic of Congo. The other applicants are his former wife, Ms Patricia Hussein Mossi, and their two children, Lucky and Samantha, all Swedish nationals and born in 1970, 1992 and 1998 respectively, and his son from an earlier relation, Sadiki, who holds the same nationality as his father and was born in 1985. These four are living in Sweden while the first applicant is residing in Bukavu, in the Democratic Republic of Congo. They were represented before the Court by Mr S. Werner, a lawyer practising in Östersund (Sweden).
s, may be summarised as follows.
The first applicant belongs to the Banyamulenge (ethnic Tutsis of Rwandan origin) and he was born and raised in the city of Bukavu in the eastern part of the Democratic Republic of Congo (hereinafter referred to as “the DRC”). In 1985 he fled to Tanzania because he was a member of an illegal political party in the DRC. In June 1987 he travelled to Libya to participate in military training but he returned to Tanzania at the end of 1988. In August 1989, he went to Sweden where, in April 1991, the Immigration Board (Invandrarverket) rejected his application for asylum but granted him a permanent residence permit based on “de facto” reasons due to the situation in the DRC (then Zaire) combined with the applicant's personal situation.
In September 1991 the first applicant married the second applicant in Tanzania, from where she originates and was living. She then travelled with him to Sweden where she was granted a permanent residence permit in November 1992. On 17 December 1992 their son, Lucky, was born and, on 16 June 1998, their daughter, Samantha, was born. These three have since been granted Swedish citizenship.
Moreover, in May 1996, the family was joined by the first applicant's son, Sadiki. He had lived in Tanzania with his mother and came to Sweden because his mother died.
According to the first and second applicants, they divorced just before the expulsion of the first applicant for practical reasons. They wanted to make it easier for the second applicant to live alone in Sweden with the children.
On 9 June 1999, upon arrival at Arlanda Airport in Sweden, the first applicant was checked by customs officers and 591 grams of heroin was found in one of his bags. He was arrested and charged with an aggravated drugs crime (grovt narkotika brott) and the attempted aggravated smuggling of drugs (försök till grov varusmuggling av narkotika).
On 10 November 1999 the District Court (tingsrätten) of Norrköping convicted the first applicant as charged and sentenced him to six and a half years' imprisonment and expulsion from Sweden with a prohibition on returning before 1 January 2015. When deciding the six and a half years' imprisonment, the District Court took into account the detriment caused to the first applicant by the expulsion and reduced the normal prison sentence, which would have been eight years' imprisonment.
Concerning the expulsion, the District Court had requested the Immigration Board to submit its observations on the matter. The Board observed that the reasons invoked by the first applicant at the time when he was granted a permanent residence permit were not such that, according to the current practice, he would have been granted such a permit on humanitarian grounds. However, the Board found that it could not be excluded that, due to the situation in the DRC, there might be an impediment to the enforcement of an expulsion order.
The District Court considered that the first applicant had a strong connection to Sweden because of his family and the fact that he had resided there for some ten years by that time. However, it noted that he had been convicted of lesser offences on six previous occasions: unlawful driving in 1993, aggravated unlawful driving in 1994 and 1995, unlawful driving and aggravated drink-driving in 1996, shop-lifting in 1997 and the unlawful use of documents in 1998. Moreover, the present offence was of a very serious nature having regard to the amount of heroin and its dangerousness to individual abusers and society as a whole. In these circumstances, the court concluded that there were particular reasons for expelling the applicant with a prohibition on returning before 1 January 2015.
The first applicant appealed to the Göta Court of Appeal (Göta hovrätt), requesting that his prison sentence be reduced and the expulsion order repealed.
On 5 January 2000 the Court of Appeal upheld the lower court's judgment in full. With regard to the expulsion, it shared the District Court's reasoning, adding that the first applicant had not succeeded in establishing himself on the Swedish labour market or adjusting to Swedish society, despite his many years in the country. It also observed that he kept in contact with his relatives in Africa whom he had visited for five months during the spring of 1999.
The first applicant appealed to the Supreme Court (Högsta domstolen) which, on 4 February 2000, refused leave to appeal.
In 2002 the applicants requested the Swedish Government, through the Ministry of Justice, to revoke the expulsion order and let the first applicant stay in Sweden with his family. On 14 November 2002 the Government rejected the request on the grounds that there was neither any impediment against the enforcement of the expulsion nor any other special reason under the Aliens Act to revoke the expulsion order.
In March 2003 the applicants lodged a new application with the Government, requesting the revocation of the expulsion order. Primarily, the applicants invoked humanitarian grounds and Article 8 of the Convention, claiming that it would be inhuman to separate the family, in particular having regard to the children and their need for their father during their up-bringing. However, the first applicant also alleged that the very unstable situation in the DRC, and the fact that he belonged to a minority which was discriminated against, constituted impediments to his expulsion. With reference to the Court of Appeal's statement that he had visited relatives in Africa during five months in 1999, he stated that he had not visited the DRC since he came to Sweden in 1989, but that the visit had been to Tanzania.
On 23 September 2003, after a request by the Government, the Migration Board (Migrationsverket) submitted its observation regarding the matter. It considered that the situation in the DRC had significantly improved after a peace agreement with Rwanda in July 2002 and a deal between the Government and rebel groups in April 2003. Thus, the Board found that there was no general impediment to sending persons back to that country. It noted that the UNHCR shared this view. It further considered that, even with regard to first applicant's ethnicity, there was no personal impediment to enforcing the expulsion order against him.
The first applicant objected to the Migration Board's conclusions, stating that he had no relatives in Kinshasa and would not be able to support himself if sent there. He invoked a statement, dated 30 September 2003, by Mr T. Rideaus, an Information Officer at the Nordic Africa Institute (Nordiska Afrikainstitutet), in which Mr Rideaus stated that the situation in the DRC was still very unstable and that fundamental human rights were not guaranteed. Moreover, since the first applicant did not have any relatives in Kinshasa and did not speak the local language of the area, he would not be able to survive there and would face grave risks because he was Banyamulenge and this group was discriminated against and disliked in most parts of the country.
On 8 October 2003 the first applicant was conditionally released from prison but placed in detention awaiting expulsion.
On 16 October 2003 the Government rejected the request to have the expulsion order revoked, finding no reason to change their previous decision.
On the same day, 16 October 2003, the first applicant was expelled to the DRC. Apparently, he arrived in Kinshasa where he remained for some time before travelling to his home town, Bukavu, where relatives have been helping him. He regularly calls his three children, and his eldest son transfers money to him every month.
Pursuant to Chapter 1, Article 8 of the Penal Code (Brottsbalken), a crime may, apart from ordinary sanctions, result in special consequences defined by law. Expulsion on account of a criminal offence constitutes such a special consequence.
Provisions on expulsion on this ground are laid down in the Aliens Act. According to Chapter 4, section 7 of the Act, an alien may not be expelled from Sweden on account of having committed a criminal offence unless certain conditions are satisfied. First, he or she must have been convicted of a crime that is punishable by imprisonment. Secondly, he or she may only be expelled if the sentence is more severe than a fine, and if (1) it may be assumed, on account of the nature of the crime and other circumstances, that he or she will continue committing crimes in Sweden, or (2) the offence, in view of the damage, danger or violation involved for private or public interests, is so serious that he or she ought not to be allowed to remain in the country.
Furthermore, under Chapter 4, section 10 of the Act, when considering whether or not an alien should be expelled, the court shall take into account the person's links to Swedish society. As regards aliens who are considered to be refugees and in need of protection in Sweden, they may be expelled only if they have committed a particularly serious crime and it would entail a serious danger for public order and safety to allow them to remain in Sweden. An alien with refugee status shall be considered as a refugee in need of protection in Sweden unless it is evident that he or she is no longer a refugee in such need.
Moreover, the court must have regard to the general provisions on impediments to the enforcement of an expulsion decision. Thus, pursuant to Chapter 8, section 1 of the Act, there is an absolute impediment to expelling an alien to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment. Further, a risk of persecution generally constitutes an impediment to enforcing an expulsion decision.
According to Chapter 7, section 16 of the Act, if the Government finds that a judgment or decision to expel a person on account of having committed a criminal offence cannot be executed or if there are otherwise special reasons not to enforce the decision, the Government may repeal, in part or completely, the judgment or decision of the court. The Government may also, in accordance with Chapter 11, Article 13, of the Instrument of Government (Regeringsformen), pardon or reduce a penal sanction or other legal effect of a criminal act.


ITEMID: 001-5397
LANGUAGEISOCODE: ENG
RESPONDENT: NOR
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: HELLUM v. NORWAY
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant is a Norwegian citizen, born in 1952 and resident in Fredrikstad. Before the Court he is represented by Mr Knut Rognlien, a lawyer practising in Oslo. The respondent Government are represented by its Agent, Mr Tolle Stabell, Attorney, Office of the Attorney General (Civil Matters).
The facts of the case, as described mainly in the national courts’ judgments, may be summarised as follows.
The applicant is a qualified teacher who also holds a degree in special educational needs. From 1980 to 1987 he worked as a teacher in a prison and, from 1987 to 1989, as a social environment worker (miljøterapeut) in a community home for young people.
The applicant began working at the Østfold Central Hospital’s psychiatric division in Veum Hospital (“the hospital”) on 7 August 1989. His job was classified as a social environment worker in order for him to receive a salary corresponding to his qualifications but, de facto, he mainly served as a non-qualified nursing assistant. On recruiting him the hospital expressly retained the right to make changes to his “duty arrangements and place of service”.
The applicant had applied for a job on the hospital’s security ward - Ward 11, which was to be opened following the closure of the national hospital for the care for particularly difficult and/or dangerous psychiatric patients and the decentralisation of the services provided by the latter. Veum hospital had sought to recruit psychiatric nurses but there was a shortage of qualified candidates.
Awaiting the opening of Ward 11, the applicant served for a brief period on Ward 12. He worked on Ward 11 from 1 January 1990 until the autumn 1991, partly during the daytime and partly on night duty. During this period there was a certain amount of disturbance on the Ward, partly owing to the hospital’s use of physical restraint of the patients, particularly by means of devices such as belts and straps. In the view of the applicant, as well as other employees, the hospital used physical restraints too often and arbitrarily. He raised the matter internally and also in several letters to the Chief County Medical Officer and the Committal Complaint Board in 1991. The disturbances at the hospital were one of the reasons why, in October and November 1991, a special inspection was carried out of the hospital’s psychiatric division. As to the use of physical restraints, it was noted in the conclusions of the inspection report that “physical restraints are employed too much without proper reason... There has been no adequate supervision and control”.
On 2 September 1991 the applicant wrote to the hospital management stating, inter alia, that the possibility of expressing professional disagreement had been exhausted, and that he therefore asked to be allowed to leave Ward 11. Accordingly, the applicant was temporarily transferred on 21 October 1991 to work on Ward 18. However, the applicant did not wish to work with patients needing nursing assistance and, again at his own request, was transferred on 6 January 1992 to work night shifts on Ward 10 on a one year temporary assignment. The applicant worked on Ward 10 until 16 April 1992, when he was granted sick leave. By this time serious problems had arisen between him and the other person working night shifts on that Ward and several unsuccessful meetings with superiors had been held to try to solve the problem. A further meeting was held in June 1992 with inter alia the hospital management, a union representative and the applicant, still on sick leave. Due to the acuteness of the problem, it was decided to place the applicant as a social environment worker in the hospital’s Activity Unit (serving the hospital at large) where, it was hoped, his pedagogic skills could be put to use. On his return to duty on 31 August 1992 he worked in the Activity Unit.
The applicant was, however, not satisfied with his new functions and, on 19 October 1992, was again granted sick leave. By 1 November 1992 he was fit for work, but informed the hospital that he did not intend to return to the Activity Unit because he could not accept the transfer from night duty on Ward 10 with the resultant reduction in salary. The applicant later failed to resume work despite the fact that his employer had let it be known that this would be regarded as absence without leave. The applicant never returned to work at the hospital. No formal decision was ever made by the applicant’s employer concerning his dismissal.
In late June 1994 the applicant sued the hospital for unlawful dismissal, but in a judgment of 30 January 1995 the Sarpsborg City Court found against him. On appeal, this judgment was upheld on 27 November 1995 by the Borgarting High Court, which concluded that he was himself responsible for having brought his employment to an end.
As the City Court had done, the High Court praised the applicant for having aired his critical views on the use of coercive measures. However, it found no basis for associating the hospital’s treatment of him with the conflict on Ward 11. Nor was there anything to indicate that his transfer to the Activity Unit had been motivated by a desire to transfer an allegedly troublesome employee from a nursing ward.
The High Court found that during the relatively brief periods the applicant had worked on Wards 10, 11, 12 and 18 there had, except for his brief assignment on Ward 18, been incidents perceived as negative by certain colleagues. This had been so even if there were colleagues with whom he had worked well. In general, the High Court noted, his relations with colleagues had showed a negative trend. The problems had come to a peak on Ward 10, where the situation had become untenable.
A colleague had, at one point, passed on confidential information that the applicant had been depressed owing to the serious illness and death of a close relative. This information was later abused by a chief physician who had stated during a meeting on personnel policy matters that he considered the applicant mentally ill. The hospital Director later expressed regret about this occurrence, noting that the applicant had not requested any evaluation of his medical state at the said meeting. In this connection, the High Court stated:
“[The applicant] argues that the chief physician of Ward 11 responded to his criticism of the conditions on the Ward by asserting that he was mentally ill. Statements of this kind – if it is correct that this was said – may result in liability for the employer under section 2-1 subsection 1, first paragraph, of the Damage Compensation Act, although it may rightly be questioned whether it was reasonable to expect the senior consultant to respond in such a manner… However, the High Court cannot see that [the applicant] has been able to establish as probable that this particular isolated incident, which was only touched upon during the submission of evidence before the High Court, has caused him any financial loss. As regards compensation for any non-pecuniary damage, the High Court notes that such a claim must be brought against the person who has caused the damage, i.e. the chief physician. It is accordingly unnecessary for the Court to go more closely into the procedural provisions laid down in section 61 A of the Working Environment Act.”
The High Court, which heard the case anew, sat with three professional judges and two “lay” judges particularly qualified to handle labour disputes, one representing the employer’s side and another the employee’s side. Normally there shall be four such “lay” judges – two from each side – outnumbering the professional judges, unless the parties agree only to have two, like in the present case. The hearing before the High Court lasted for four days during which a total of 24 witnesses were heard (of whom six were heard for the first time in the case).
On 15 April 1996 the Appeals Selection Committee of the Supreme Court (Høyesteretts kjæremålsutvalg) refused the applicant leave to appeal under Article 373 (3) no. 2 of the Code of Civil Procedure (tvistemålsloven). It observed that the appeal could not be upheld without the Supreme Court departing form the High Court’s judgment on a point where it was essential for the latter to hear evidence from the parties and witnesses or to carry out investigative measures, which it was not open to the Supreme Court to do.