ITEMID: 001-84421
LANGUAGEISOCODE: ENG
RESPONDENT: MLT
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF MICALLEF v. MALTA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses - award
JUDGES: Giovanni Bonello;Ján Šikuta;Kristaq Traja;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä
TEXT: 5. The applicant is a Maltese national and lives in Vittoriosa.
6. The applicant is the brother of Mrs M. In 1985 the latter was a party to civil proceedings concerning a dispute between neighbours living in a block of apartments. Mrs M. lived above Mr F. The dispute related to Mr F’s objection to Mrs M.’s habit of hanging out wet clothes to dry over Mr F.’s yard, thereby allegedly interfering with his property rights. Mr F. relied on the provisions of section 403 of the Maltese Civil Code in this connection. Pending the trial of the dispute, Mr F. applied for an injunction to restrain Mrs M. from hanging out clothes to dry over his yard.
7. On one occasion during the application for injunction proceedings, and after Mrs M. and her lawyer, Dr A., had already left the court room, the presiding magistrate changed the date of a future hearing, which had already been fixed. As a consequence, Mrs M. was not aware of the new date and was not present at the hearing. In her absence the presiding magistrate issued the injunction in favour of Mr F. On 6 March 1992 the relevant court trying the merits of Mr F.’s civil action found against Mrs M and issued a permanent injunction against her.
8. On an unspecified date Mrs M. instituted proceedings before the Civil Court (First Hall) in its ordinary jurisdiction, claiming that the injunction had been issued in her absence and without giving her the opportunity to testify.
9. By a judgment of 15 October 1990, the Civil Court upheld her claim. It held that the audi alteram partem principle was applicable to the procedure for issuing an injunction. Referring to Article 873 (2) of the Code of Organisation and Civil Procedure, which stated that an injunction should not be issued unless the court was satisfied that it was necessary in order to preserve any right of the person seeking it, the Civil Court held that the relevant test was a matter for the court’s discretion. However, if the court found it necessary to hear the parties, they should be duly heard in accordance with the principles of natural justice. In the present case, the court held that through no fault of her own, Mrs M. had been denied her right to be heard and therefore the said warrant was null and void.
10. Mr F., the other party to the civil proceedings, appealed against the judgment of 15 October 1990. In the first-instance proceedings, Mr F. had been assisted by Dr U., while at the appeal stage he had appointed the latter’s son, Dr C. The Court of Appeal was presided over by the Chief Justice, who sat with two other judges. The Chief Justice was Dr U.’s brother and Dr C.’s uncle.
11. At the appeal hearing of 12 October 1992, the Chief Justice, after asking some questions, alleged that the conduct of Dr A. was unethical, as he had impugned, without justification, the conduct of Mr. F’s lawyer. When it was noted that in the first-instance proceedings Mr F. had been represented by the Chief Justice’s brother, the Chief Justice threatened to refer the case to “the competent authorities”. Furthermore, he dictated a note to this effect, which read as follows:
“The Court is asking Dr A., who himself is declaring that the date of the hearing at first instance had been changed when he and his client had already left the courtroom, why he insisted that the said change of date occurred consequent to a request by a lawyer. Dr A.’s reply is: “I deduce so, as there were two lawyers present: Dr U. and me.”
... Mrs M.’s lawyer asserts facts and has no problem hypothesising about the behaviour of another lawyer and the judge, after he and his client had walked out of the courtroom.”
12. Dr A. said a few words in his own defence, but no oral submissions regarding the merits of the appeal were heard. The Chief Justice suspended the hearing and went to his chambers. A few minutes later the lawyers of both parties were called into the Chief Justice’s chambers. Explanations were heard and no further action appears to have been taken.
13. By a judgment of 5 February 1993, the Court of Appeal found against Mrs M. and reversed the judgment of the Civil Court. It held that principles of natural justice were not mandatory and could not be invoked in preliminary proceedings that were essentially conditional and of a temporary nature. Moreover, the Court of Appeal did not agree with the issue of fact mentioned in the first-instance judgment.
14. On 25 May 1993 Mrs M. instituted proceedings before the Civil Court (First Hall) in its constitutional jurisdiction. Relying on Article 6 of the Convention, she alleged that the President of the Court of Appeal (the Chief Justice) lacked objective impartiality by reason of his family ties with the other party’s lawyers and that this had been manifest in the incident of 12 October 1992. Observing that the Court of Appeal had denied facts which had been already proved, she further submitted that her right to a fair trial had been violated.
15. As Mrs M. had died before her constitutional claim could be determined, on 22 May 2002 the applicant intervened in the proceedings before the Civil Court in his capacity as brother of the plaintiff.
16. In a judgment of 29 January 2004, the Civil Court dismissed Mrs M.’s claim as frivolous and vexatious. Although it noted that the plaintiff had failed to request the Chief Justice to withdraw from the case before the pronouncement of the final judgment, it rejected the Government’s plea of non-exhaustion of ordinary remedies and decided to exercise its constitutional jurisdiction. As to the merits, it made a thorough analysis of the notions and rights emanating from Article 6 of the Convention, including equality of arms, but placed particular emphasis on the requirement of impartiality of the Civil Court. However, it was unable to find any link between the incident of 12 October 1992 and the content of the judgment of 5 February 1993. As confirmed by Dr A. himself, the incident had been defused; however, this could not have given Mrs M. or her lawyer any expectation that the Court of Appeal would rule in her favour. Furthermore, the Court of Appeal was composed of two other judges, who had not been involved in the incident, and there had been no doubt that the judgment, which appeared to be well-reasoned, had been delivered by the bench as a whole.
17. The applicant appealed to the Constitutional Court.
18. By a judgment of 24 October 2005, the Constitutional Court declared the appeal inadmissible. It reiterated that in accordance with Article 46 § 5 of the Constitution, no appeal lay against a decision dismissing an application as frivolous and vexatious.
19. Article 873 of Title VI, Sub-Title V of the Code of Organisation and Civil Procedure, regarding warrants of prohibitory injunction, reads as follows:
“(1) The object of a warrant of prohibitory injunction is to restrain a person from doing anything whatsoever which might be prejudicial to the person suing out the warrant.
(2) The court shall not issue any such warrant unless it is satisfied that such warrant is necessary in order to preserve any right of the person suing out the warrant, and that prima facie such person appears to possess such right.”
20. Under Maltese law, as it stood at the time of the present case, a judge could be challenged or could abstain from hearing a case if one of the parties was represented by the former’s son or daughter, spouse or ascendant. Nothing prevented a judge from sitting in a case if the representative in issue was his or her brother or uncle. The pertinent articles of the Code of Organisation and Civil Procedure, in so far as relevant, read as follows:
Article 733
“The judges may not be challenged, nor may they abstain from sitting in any cause brought before the court in which they are appointed to sit, except for any of the reasons hereinafter mentioned.”
Article 734
“(1) A judge may be challenged or abstain from sitting in a cause -
...
(e) if he, or his spouse, is directly or indirectly interested in the event of the suit;
(f) if the advocate or legal procurator pleading before a judge is the son or daughter, spouse or ascendant of the said judge;”
The relevant article of the Code of Organisation and Civil Procedure was amended in 2007 to include another ground:
“(g) if the advocate or legal procurator pleading before a judge is the brother or sister of the said judge;”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-105746
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF GRIMKOVSKAYA v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 8
JUDGES: Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Isabelle Berro-Lefèvre
TEXT: 7. The applicant was born in 1966 and lives in Krasnodon.
8. The applicant is the owner of a house on K. Street in Krasnodon, where she resides with her parents and her minor son, D. G.
9. According to the Government, since 1983 K. Street had been a part of the Soviet trans-republican motorway running from Chisinau (Moldova) to Volgograd (the Russian Federation). In 1998 (after disintegration of the USSR) the Ukrainian authorities undertook a motorway stocktaking project and re-classified part of the motorway routed through the applicant’s street as the “M04 Kyiv-Lugansk-Izvarine motorway”.
10. According to the applicant, until the 1998 stocktaking project, the Chisinau-Volgograd motorway had never been routed through K. Street. Instead, it ran through P. Street in Krasnodon. K. Street, which is only six meters wide, is lined with private houses and gardens and is completely unsuitable for accommodating cross-town traffic. It has no drainage system, pavements or proper surfacing able to support heavy lorries and has been initially designed as an exclusively residential street. In 1998, in the course of the stocktaking project, the Department for Architecture and Urban Development of the Krasnodon City Council’s Executive Committee agreed, for the first time, that the M04 motorway should pass via K. Street. In support of this allegation, the applicant provided a copy of a letter sent by the abovementioned Department on 9 October 1998 addressed to the State Roads Design Institute (Дорпроект), in which it notified that agency of its consent to the M04 motorway being routed via a number of streets in Krasnodon, including K. Street.
11. According to the applicant, following this change in the routing of traffic, her house eventually became practically uninhabitable. It suffered heavily from vibration and noise caused by up to several hundred lorries passing by every hour. In addition, air pollution increased substantially over the years and numerous potholes emerged in the inadequate surface of the road. As a result of driving across these potholes, the vehicles emitted additional fumes and stirred up clouds of dust. In trying to deal with the potholes, the road service department started filling them with cheap materials, such as waste from nearby coal-mines, which had a high heavymetal content.
12. On 15 May 2002, responding to complaints from the street’s residents, the Lugansk Regional Sanitary Department (Державна санітарно-епідеміологічна служба в Луганській області) measured the level of pollution near several K. Street houses, including the applicant’s. During the test period of one hour, 129 vehicles were recorded as having passed by, 71 of which (55%) emitted pollutants (nitrogen dioxide, carbon monoxide, saturated hydrocarbons, lead, copper, etc.) in excess of applicable safety standards. It was further established that the content of copper and lead in dust stirred up exceeded the safety standards by 23 and 7.5 times respectively. The monitoring team also noted that the road surface was damaged.
13. By way of evidence concerning the damage to the applicant’s house, she presented a certificate dated 31 May 2002 signed by a group of assessors consisting of a city council deputy, the head of the local residents’ association and a private individual. The group attested that it had examined the house and found that it had been damaged. In particular, the basement was cracked and the walls were covered with coal dust, which had allegedly been used during ad-hoc repairs of the road aimed at filling the potholes and subsequently disturbed by passing traffic. It also noted that the road surface near the applicant’s house had been badly damaged, thus amplifying vibrations from passing vehicles and causing vibration of the furniture inside the applicant’s house and pieces of plaster to occasionally fall from its ceiling and walls.
14. By way of evidence of health damage, the applicant presented medical certificates attesting that her father, mother and minor son were suffering from numerous diseases. The applicant’s father, born in 1939, was diagnosed, in particular, with chronic erosive gastroduodenitis, chronic bronchitis, pneumatic fibrosis, atherosclerosis, hypertension, cardiosclerosis and other diseases, cumulatively resulting in his being assessed in April 2001 as a “second (intermediate) degree” disabled person.
15. The applicant’s mother (Mrs Grishchenko), born in 1946, was found to be suffering, inter alia, from ulcers, chronic bronchitis, respiratory insufficiency, ischemic heart disease, deforming osteoarthritis, osteochondrosis and other diseases.
16. The applicant’s minor son D. G., born in 1994, started suffering from frequent respiratory tract diseases from 1997 onwards. In 1998 he was diagnosed as suffering from secondary immunodeficiency, non-rheumatic carditis and biliary dyskinesia. In 2000 D. G. was further diagnosed with hyperexcitability and hyperactivity disorder. During in-patient treatment of D. G. in November 2002, he was found to have excessive levels of copper and lead in his blood and urine and was diagnosed as suffering from chronic poisoning from heavy-metal salts, chronic toxic hepatitis and toxic encephalopathy.
17. On 12 July 2003 the Krasnodon Children’s Hospital recommended that the applicant’s son be resettled. The certificate noted, in particular:
“Regard being had [to the fact] that the child has been living in an environmentallysaturated area since his birth (considerable pollution of air and soil with salts of heavy metals, sulphur dioxide, saturated and unsaturated carbohydrates), it is necessary to change his place of residence”.
18. On numerous occasions Mrs Grishchenko complained on the family’s behalf to various authorities (including the President of Ukraine, the State Sanitary Department, the municipal authorities and the prosecutor’s office) about intolerable levels of nuisance and pollution from the M04 motorway. According to the case file, the first complaints were lodged by her no later than 2000. On various occasions analogous complaints were also lodged individually and collectively by other K. Street residents. It is unclear from the case file what actions, if any, were taken by the authorities in response to these complaints prior to May 2002.
19. On 28 May 2002, following the assessment of pollution levels undertaken on 15 May 2002 (mentioned in paragraph 12 above), the Lugansk Regional Chief Sanitary Officer (головний санітарний лікар Луганської області) ordered the Krasnodon Mayor to consider stopping through traffic using K. Street and repairing K. Street’s road surface. In his decision, that official mentioned that K. Street was designated as a temporary transit thoroughfare and that heavy traffic had ruined the surface of the road. He further noted that the level of air pollution on K. Street was in breach of the Law of Ukraine “On the Protection of the Air” (“the Clean Air Act”) and that such pollution could have adverse effects on the residents’ health.
20. On an unspecified date Mrs Grishchenko complained to the Krasnodon Prosecutors’ Office about the level of pollution and demanded the initiation of a criminal investigation into the situation.
21. On 13 June 2002 the Krasnodon Prosecutors’ Office rejected her demand, having found that while the fact of excessive pollution was not in dispute, there was no basis for linking this situation to any criminal wrongdoing on any authority’s behalf. There was no appearance that the decision to use K. Street as a transit road had been in and of itself unlawful. As regards repairing the road, the Prosecutors’ Office had ordered the Krasnodon City Council’s Executive Committee (hereafter “the Executive Committee”) to redress violations of environmental law. It further notified Mrs Grishchenko that according to its information, repairs were planned for June 2002.
22. On 16 June 2002 K. Street was blocked to prevent the further passage of automobile traffic.
23. On 2 July 2002 the Lugansk Regional Prosecutors’ Office further informed Mrs Grishchenko that on 18 June 2002 the Executive Committee had decided to order repairs to K. Street.
24. On 24 October 2002 the Chief of the Krasnodon Department of the Interior recommended that the municipality find funding for the repair of the surface of K. and L. Streets.
25. On 1 July 2003 the Lugansk Regional Department of the State Highways Agency (Укравтодор – “the Highways Agency”) wrote to the Mayor of Krasnodon, acknowledging that the section of the M04 road in the region was not sufficiently equipped to accommodate the increased traffic and that there was an urgent need to build transit routes bypassing populated communities, including Krasnodon. However, regard being had to the lack of available funding, these works had not been carried out and the Lugansk Department had asked its central headquarters to deal with the situation. It further suggested that the Krasnodon municipality should renovate the intown part of the road using funds garnered from automobile tax retained by the city treasury.
26. On 6 June 2006 the Municipal Housing and Municipal Maintenance Department informed the Executive Committee that repairing the surface of K. Street had been entered into the Urban Development Plan for 2006. However, no funding for the works had ever been received. It further noted that Krasnodon lacked any alternative roads meeting the standards of a transit thoroughfare and that the use of K. Street for this purpose – which it was unequipped for – had resulted in heavy deterioration of its surface.
27. On 27 June 2006 the Lugansk Regional Chief Sanitary Officer confirmed in his correspondence that the passage of vehicles through K. Street had been impossible, the street having been blocked by concrete blocks and other barriers.
28. On 24 November 2010 the applicant informed the Court, without providing any supporting materials, that the use of K. Street as a motorway had been recently restarted without any in-depth repairs having been carried out.
29. In 2001 Mrs Grishchenko lodged a civil claim on the applicant’s behalf, seeking to oblige the Krasnodon City Council’s Executive Committee to resettle the family and to pay 5,000 hryvnias (UAH) in compensation for damage caused to their house and health by the operation of the M04 motorway.
30. In the course of the trial, the court examined written evidence presented by the applicant and questioned officials of the municipal Architecture, Housing and Road Maintenance Departments, and officers from the traffic police. The Architecture Department official stated that K. Street was seven metres wide; it had no drainage or pavements because there was no funding available for constructing these amenities. The Housing Maintenance Department official acknowledged that his department was partly responsible for K. Street’s maintenance, which was to be funded by the Highways Agency and from automobile taxes. As the funding had not been forthcoming, the street had not been maintained properly. He also opined that the damage to the applicant’s house had more likely been caused by construction flaws than by the operation of the motorway. The official from the Road Maintenance Department submitted that K. Street, being part of a motorway, was to be managed by it jointly with the Highways Agency. Finally, a traffic police officer submitted that for several preceding years there had been no complaints of traffic accidents on K. Street and that twice a year the traffic police examined the state of the road.
31. On 18 January 2002 the Krasnodon Court rejected Mrs Grishchenko’s claim. The full text of its reasoning reads as follows:
“It has been established in court that K. Street in Krasnodon hosts the M04 KyivLugansk-Izvarine motorway.
The plaintiff did not provide the court with evidence that on account of the Executive Committee’s fault the road is operated in breach of technical requirements existing for this category of roads. The plaintiff did not specify which particular provisions have been breached.
In addition, the plaintiff did not provide evidence that it is the [Executive Committee’s] fault that her lawful rights have been infringed, namely, [that] her house has been destroyed, [and that] herself and her family suffer from various illnesses, resulting in mental distress.
Based on the above, the court considers it necessary to reject the claim as illfounded ...”
32. Mrs Grishchenko appealed. Referring primarily to Article 50 of the Constitution of Ukraine and the Clean Air Act, she noted, in particular, that by focusing on the issue of the road’s maintenance, the first-instance court had deviated from the object of her claim. In fact, instead of seeking to oblige the plaintiff to repair the street, she had demanded resettlement, as in her opinion the street was completely unsuitable for hosting a motorway in the first place. The defendant had been at fault, not only for allowing through traffic, but also for failure to organise its regular supervision by traffic police, environmental and sanitary services to ensure safety, and anti-pollution measures. The claimant asserted that the witnesses had presented inaccurate data. In particular, there had been numerous traffic accidents on K. Street, and a recent police response to one of the residents’ complaints about that issue had been included in the case file. Mrs Grishchenko further complained that the court had failed to summon officials from the environmental and sanitary services to present comprehensive information about the environmental situation around the road and so had failed to ensure her and her family’s right of access to environmental information.
33. On 10 June 2002 the Lugansk Regional Court of Appeal dismissed this appeal. The full text of the court’s reasoning was as follows:
“Rejecting the claim of Grimkovskaya N. N., the court lawfully concluded that the M04 Kyiv-Lugansk-Izvarine motorway has been assigned on the basis of full managerial maintenance to the [Highways Agency]... and not to the Krasnodon City Council’s Executive Committee.
The plaintiff did not provide the court with any evidence that the defendant had wrongly caused her non-pecuniary damage and did not specify the legal basis for compensation of the [alleged] non-pecuniary damage and [for] resettlement ...”
34. On 8 July 2002 Mrs Grishchenko appealed in cassation. She submitted that in her view the Krasnodon City Council’s Executive Committee had been the proper defendant. In support of this argument, she provided a letter from the Highways Agency dated 6 June 2002 informing her that K. Street was not on its books and that it was to be managed by the municipality. She further alleged that the court had never examined whether the decision of the Krasnodon City Department for Architecture and Urban Development taken in October 1998 to route through traffic via K. Street had been lawful and reasonable. She considered that it had been unlawful to turn a six-metre-wide street into a motorway, especially in light of the subsequent failure of the municipality to organise proper environmental monitoring and management of the road. Mrs Grishchenko additionally mentioned that the first measurement of pollution levels had been carried out only in May 2002, following numerous complaints by the street’s residents.
35. On 21 July 2003 the Supreme Court of Ukraine rejected Mrs Grishchenko’s request for leave to appeal in cassation.
36. Relevant provisions of the Constitution read as follows:
“To ensure ecological safety and to maintain the ecological balance on the territory of Ukraine, to overcome the consequences of the Chernobyl catastrophe — a catastrophe of global scale, and to preserve the gene pool of the Ukrainian people, is the duty of the State.”
“Everyone has the right to an environment that is safe for life and health, and to compensation for damages inflicted through the violation of this right ...”
37. The relevant provisions of the above law as worded at the material time read as follows:
“Carrying out a business or other type of activity connected to a breach of conditions and requirements concerning the emission of pollutants into the air and levels of [pollution] by physical and biological factors envisaged by permits may be restricted, suspended or discontinued according to the law.”
“...
Local bodies of executive power, bodies of local self-governance, enterprises, establishments, organisations and citizens [involved in] entrepreneurial activity shall be obliged to take necessary measures to prevent and preclude [an increase in] established levels of air [pollution] by physical and biological factors and [its effects on] human health.”
“In order to prevent and mitigate air pollution by methods of transport and by physical factors and facilities connected to them, there shall be:
Developed and implemented a system of measures concerning reductions in emissions, detoxification of pollutants and mitigation of physical impacts in the course of the development, production, exploitation and repair of methods of transport and in [associated] facilities;
A shift of methods of transport and [associated] facilities to less toxic types of fuel;
Rational planning and development of populated communities in conformity with the distances to main roads set out by law or regulation;
The movement of transport enterprises, cargo transit, and automobile transport [so that they take place] outside of densely populated residential areas;
Restrictions on the entrance of automotive traffic and other methods of transport and on [associated] facilities in areas zoned for residential, resort, health, recreational and nature-reserve uses, and in places of mass recreation and tourism;
Improvement in the state of maintenance of main roads and street surfaces;
Implementation of automated systems of traffic regulation in the cities;
Improvement in technologies for the transportation and storage of fuel at petrol refineries and petrol stations;
Implementation of and improvement in monitoring activities, regulatory facilities, diagnostics facilities and comprehensive systems of control over compliance with environmental safety laws and regulations governing methods of transport and [associated] facilities;
A prohibition on the development, production and exploitation of methods of transport and [associated] facilities or physical factors [giving rise to] a level of pollutants in exhaust fumes which exceeds [applicable] standards.”
“In order to preclude and decrease [excessive] levels of production and other noise and [in order to] achieve safe [levels of noise], there shall be:
...
Improvement in the design of methods of transport and [associated] facilities, and in the conditions for their exploitation, as well as due maintenance of train and tram tracks, roads, [and] street surfaces;
The situation, during the planning and development of populated communities, of enterprises, transport thoroughfares, aerodromes and other objects containing sources of noise in accordance with sanitary requirements and construction guidelines established by law and [in accordance with] noise maps;
...
Administrative measures concerning the preclusion and decrease of ... noise, including the implementation of regulations and schedules [governing] transport and vehicle movement, and [the operation of associated] facilities, within the boundaries of populated communities.
...”
38. The relevant paragraph of the Guidelines as worded at the material time reads as follows:
“In the course of developing new or reconstructing existing motorways of national importance, their routes shall be channelled, as a rule, [so as to] bypass existing populated communities.”
39. The Aarhus Convention (“Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters”, ECE/CEP/43) was adopted on 25 June 1998 by the United Nations Economic Commission for Europe and came into force on 30 October 2001. Ukraine ratified the Convention on 6 July 1999.
The Aarhus Convention may be broken down into the following areas:
- Developing public access to information held by the public authorities, in particular by providing for transparent and accessible dissemination of basic information.
- Promoting public participation in decision-making concerning issues with an environmental impact. In particular, provision is made for encouraging public participation from the beginning of the procedure for a proposed development, “when all options are open and effective public participation can take place”. Due account is to be taken of the outcome of the public participation in reaching the final decision, which must also be made public.
- Extending conditions for access to the courts in connection with environmental legislation and access to information.
40. On 27 June 2003 the Parliamentary Assembly of the Council of Europe adopted Recommendation 1614 (2003) on environment and human rights. The relevant part of this recommendation states:
“9. The Assembly recommends that the Governments of member States:
i. ensure appropriate protection of the life, health, family and private life, physical integrity and private property of persons in accordance with Articles 2, 3 and 8 of the European Convention on Human Rights and by Article 1 of its Additional Protocol, by also taking particular account of the need for environmental protection;
ii. recognise a human right to a healthy, viable and decent environment which includes the objective obligation for states to protect the environment, in national laws, preferably at constitutional level;
iii. safeguard the individual procedural rights to access to information, public participation in decision making and access to justice in environmental matters set out in the Aarhus Convention;
...”
VIOLATED_ARTICLES: 8


ITEMID: 001-57816
LANGUAGEISOCODE: ENG
RESPONDENT: IRL
BRANCH: CHAMBER
DATE: 1993
DOCNAME: CASE OF PINE VALLEY DEVELOPMENTS LTD AND OTHERS v. IRELAND (ARTICLE 50)
IMPORTANCE: 2
CONCLUSION: Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: C. Russo;R. Pekkanen
TEXT: 1. The case was referred to the Court by the European Commission of Human Rights ("the Commission") and by the Government of Ireland ("the Government") on 11 July and 11 September 1990, respectively. It originated in an application (no. 12742/87) against Ireland lodged with the Commission in 1987 by two companies registered in that State, Pine Valley Developments Ltd ("Pine Valley") and Healy Holdings Ltd ("Healy Holdings"), and an Irish national, Mr Daniel Healy.
2. By judgment of 29 November 1991 ("the principal judgment"), the Court held, inter alia, that Healy Holdings and Mr Healy (hereinafter together referred to as "the applicants") had been victims of discrimination contrary to Article 14 of the Convention, taken in conjunction with Article 1 of Protocol No. 1 (art. 14+P1-1), in that section 6 of the Local Government (Planning and Development) Act 1982 ("the 1982 Act") had retrospectively validated all planning permissions in the relevant category other than theirs (Series A no. 222, paragraphs 61-64 of the reasons and point 6 of the operative provisions, pp. 26-27 and 29).
The only outstanding matter to be settled is the question of the application of Article 50 (art. 50). As regards the facts, reference should be made to paragraphs 8-34 of the principal judgment (ibid., pp. 8-17).
3. At the Court’s hearing on 21 May 1991, counsel for the Government and the Delegate of the Commission both reserved their position on the claims for just satisfaction advanced by the applicants.
In the principal judgment, the Court therefore reserved the whole of this question and invited the Government and the applicants to submit, within the next three months, their written comments thereon and, in particular, to notify the Court of any agreement reached between them (paragraphs 67-68 of the reasons and point 8 of the operative provisions, pp. 28-29).
4. Following the failure of settlement negotiations and in accordance with the foregoing invitation and the President’s directions, submissions and observations relating to the claims under Article 50 (art. 50) were filed by the applicants on 28 February, 19 March, 20 and 22 April and 30 June 1992, by the Government on 27 March, 10 April and 15 June 1992 and by the Delegate of the Commission on 10 April 1992. The materials furnished to the Court included valuations by chartered surveyors of the land owned by Healy Holdings, to which outline planning permission had initially been attached ("the Clondalkin site").
5. On 23 September 1992 the Court decided that there was no need to hold a hearing.
6. At the deliberations on 1 February 1993 Mr R. Ryssdal and Mr J. Pinheiro Farinha, who had sat to consider the merits of the case but were unable to be present on that date, were replaced by Mrs D. Bindschedler-Robert, who sat as President of the Chamber, and Mr S.K. Martens, substitute judge, respectively; Mrs Bindschedler-Robert in her turn was replaced by Mr R. Pekkanen, also a substitute judge (Rules 21 para. 5, 22 para. 1, 24 para. 1 and 54 para. 2).


ITEMID: 001-81623
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF CHUKHAS v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of P1-1
JUDGES: Peer Lorenzen
TEXT: 4. The applicant was born in 1963 and lives in Gorodok.
5. On 1 June 1998 the applicant was dismissed by her employer, the Gorodok State Administration (“the Administration”; Городокська районна державна адміністрація) from her position as a senior logistics specialist (головний спеціаліст організаційного відділу секретаріату) on account of her failure to meet the requirements of the post.
6. On 30 June 1998 the applicant instituted civil proceedings for reinstatement in the Yarmolynets City Court (the “Yarmolynets Court”; Ярмолинецький районний суд Хмельницької області).
7. On 5 April 1999 the court left the applicant's claim without consideration on account of her failures to appear for the hearings. The applicant did not appeal against this decision within the statutory time-limit.
8. On 24 October 2000 following the applicant's petition, the Khmelnytsky Region Deputy Prosecutor instituted a protest, seeking to re-open the proceedings on account of the court's failure to inform the applicant of the date of the last hearing.
9. On 24 November 2000 the Presidium of the Khmelnytsky Regional Court (the “Regional Court”; Хмельницький обласний суд) found the protest substantiated, quashed the decision of 5 April 1999 and remitted the case for a fresh consideration to the Yarmolynets Court.
10. On 6 September 2001 the Yarmolynets Court dismissed the applicant's reinstatement claims. It found, however, that the dismissal record was incorrect, as in fact the applicant had not passed the probationary period. Accordingly, the court awarded the applicant 5,000 Ukrainian hryvnyas (UAH) in non-pecuniary damage. Both parties appealed.
11. On 4 December 2001 the Regional Court upheld the judgment, but reduced the amount of compensation to UAH 1,000. The applicant appealed in cassation.
12. On 11 May 2002 the Supreme Court rejected the applicant's request for leave to appeal in cassation against the court decisions of 6 September and 4 December 2001.
13. On 4 February 2002 the Gorodok Bailiffs' Service (“the Bailiffs”; Відділ Державної виконавчої служби Городоцького районного управління юстиції) initiated enforcement proceedings for the judgment of 4 December 2001.
14. On 19 September 2002 the applicant was paid UAH 50.
15. On 3 February 2003 the Bailiffs terminated the enforcement proceedings in view of the debtor's lack of funds.
16. In January 2003 the applicant instituted administrative proceedings against the Bailiffs complaining about their failure to collect the judgment debt due to her. These proceedings ended on 22 February 2005 by a ruling of the Regional Court, upholding the decision to leave the applicant's complaint without consideration. The applicant did not appeal in cassation.
17. On an unspecified date the enforcement proceedings were re-opened and on 14 December 2004 the applicant was paid the remaining award of UAH 950.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-102216
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: HOFMANN v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Ganna Yudkivska;Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: The applicant, Mr Heinz Wolfgang Hofmann, is a German national who was born in 1952 and lives in Roßlau.
On 20 July 2007 the applicant and his wife were involved in a fist fight with a neighbour. Both the applicant’s wife and the neighbour pressed criminal charges for assault.
On 18 June 2007 the police summoned the applicant as witness in relation to the assault charges against the neighbour.
On 2 July 2007 the police ordered that the applicant’s fingerprints, photographs and a saliva sample be taken for the police records pursuant to section 81b of the Code of Criminal Procedure (see “Relevant domestic law” below) in connection with assault charges against the applicant.
On 1 August 2007 counsel requested legal aid for a complaint against the order of 2 July 2007.
On 21 August 2007 the police withdrew the order insofar as it related to a saliva sample.
On 10 April 2008 the Dessau-Roßlau Administrative Court, sitting as a chamber composed of three judges, granted the legal aid request on the ground that it was doubtful whether the order had been lawful. The applicant had not concealed his identity during previous incidents that had resulted in criminal investigations against him. There were no indications that he would do so in the future and that the taking of fingerprints or photographs for the police records would help in criminal investigations.
On 17 July 2008 the Administrative Court, sitting in single judge formation, dismissed the complaint, holding that the conditions of section 81b of the Code of Criminal Procedure had been met. In view of previous criminal investigations against the applicant and his aggressive behaviour, the court found sufficient grounds to believe that it was likely that the applicant would be suspect in criminal investigations concerning assault in the future. The court further held it to be irrelevant that the applicant had always been known to the victims in the past and that his identification had not posed problems for the police, since the suspects for assault were not always known to the victims and it could not be ruled out that potential victims would be unaware of the applicant’s identity in the future.
Counsel requested legal aid for the appeal proceedings and requested leave to appeal.
On 16 March 2009 the Administrative Appeals Court of the Land Saxony-Anhalt refused legal aid for lack of prospect of success as well as leave to appeal. It noted that the taking of fingerprints and photographs for the police records was a preventive measure aimed at facilitating future criminal investigations against unknown suspects. It further noted that the administrative court had sufficiently established that the conditions of section 81b of the Code of Criminal Procedure had been met in view of the incident of 20 July 2007 and eight other criminal investigations against the applicant concerning assault, defamation, coercion, child abuse and abuse of a position of trust, none of which had resulted in charges being preferred against the applicant. The Administrative Appeals Court rejected the applicant’s submission that the conditions of section 81b of the Code of Criminal Procedure had not been met in view of the incident of 20 July 2007 alone, since all nine criminal investigations against the applicant had to be taken into account.
On 7 April 2009 the applicant, acting pro se, lodged a constitutional complaint with the aim that the Administrative Appeals Court’s “wrong decision” be set aside on the grounds that the administrative courts had not been independent; that the single judge had not duly considered the decision of three judges to grant legal aid; that the courts had wrongly taken into account criminal investigations against him since he had never been convicted; that the aims of the authorities had been to debase, to criminalise, to dishonour and to humiliate him; and that the authorities had attempted to further increase his debts by ordering him to pay excessive court fees. He submitted that the police had coerced the administrative court into perverting the course of justice and that the courts had covered up the illegal actions of the police. He lastly asserted that Saxony-Anhalt was not a Land based on the rule of law and that everyone who was willing to complain about illegal police actions like himself was discriminated, unjustly persecuted and silenced using methods of the Staatssicherheitsdienst (the secret service of the former German Democratic Republic).
On 22 May 2009 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint for examination without giving further reasons (no. 1 BvR 860/09).
Pursuant to section 81b of the Code of Criminal Procedure photographs and fingerprints of the accused may be taken, even against his will, and measurements may be made of him and other similar measures taken which are required for the purposes of conducting the criminal proceedings or of the police records department.
The constitutional right to privacy, enshrined in Articles 1 § 1 and 2 § 1 of the Basic Law, read together, guarantees that an individual may decide what personal information to disclose and to whom; it also protects individuals from unlimited investigations as well as storage and passing on of personal data without their consent. Infringements of this right are only permissible in the general interest, on the basis of an act of parliament or delegated legislation, and insofar as the impugned measure is proportional to the legitimate aim pursued (see, amongst many others, Federal Constitutional Court, judgment of 15 December 1983, published in BVerfGE 65, p. 1 (at pp. 41 et seqq.)).
According to Section 92 of the Federal Constitutional Court Act the reasons for the complaint shall specify the right which is claimed to have been violated and the act or omission of the organ or authority by which the complainant claims to have been harmed.


ITEMID: 001-107444
LANGUAGEISOCODE: ENG
RESPONDENT: BIH
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF RUNIĆ AND OTHERS v. BOSNIA AND HERZEGOVINA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6;Violation of P1-1
JUDGES: George Nicolaou;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva
TEXT: 5. The applicants live in Bosnia and Herzegovina.
6. By 28 judgments of different courts of first instance (the application no. 47314/10 concerns the non-enforcement of two judgments) of 18 April 2000, 14 December 1999, 1 March 2000, 15 June 1999, 8 September 2000, 21 December 1999, 10 May 1999, 26 September 2000, 29 September 2000, 29 May 2003, 19 June 2001, 1 December 2000, 1 February 2001, 29 November 2000, 12 June 2001, 5 December 2000, 5 April 2001, 7 November 2000, 12 June 2001, 29 November 2000, 30 November 2000, 13 July 2000, 1 March 2000, 9 December 1999, 25 April 2001, 19 June 2003, 27 September 2000 and 16 October 2002, which became final on 3 October 2000, 24 December 2001, 1 December 2000, 1 June 2000, 7 October 2002, 14 December 2000, 21 February 2001, 7 May 2002, 2 October 2002, 1 August 2003, 3 August 2001, 16 June 2001, 22 March 2001, 17 February 2001, 11 July 2001, 16 June 2001, 9 May 2001, 5 January 2001, 4 July 2001, 7 March 2001, 22 May 2001, 1 November 2002, 13 October 2000, 12 October 2000, 15 July 2004, 13 June 2005, 11 January 2001 and 28 April 2003, respectively, the Republika Srpska (an Entity of Bosnia and Herzegovina) was ordered to pay, within 15 days, the following amounts in convertible marks (BAM) in respect of war damage together with default interest at the statutory rate:
(i) BAM 20,000 in respect of non-pecuniary damage and BAM 2,000 in respect of pecuniary damage to the Runićs and Ms Bjeljac;
(ii) BAM 7,746 in respect of pecuniary damage and BAM 1,876 in respect of legal costs to Mr Gačić;
(iii) BAM 49,000 in respect of non-pecuniary damage and BAM 1,106 in respect of legal costs to Mr Višekruna;
(iv) BAM 16,000 in respect of non-pecuniary damage and BAM 2,460 in respect of pecuniary damage to the Manojlovićs;
(v) BAM 13,000 in respect of non-pecuniary damage and BAM 1,196 in respect of legal costs to Mr Vučanović;
(vi) BAM 7,200 in respect of non-pecuniary damage to Mr Šavija;
(vii) BAM 21,000 in respect of non-pecuniary damage, BAM 2,856 in respect of pecuniary damage and BAM 1,366 in respect of legal costs to the Pilipovićs;
(viii) BAM 26,000 in respect of non-pecuniary damage, BAM 2,000 in respect of pecuniary damage and BAM 1,514 in respect of legal costs to the Grujićs;
(ix) BAM 22,000 in respect of non-pecuniary damage, BAM 2,600 in respect of pecuniary damage and BAM 1,300 in respect of legal costs to the Brkićs;
(x) BAM 16,490 in respect of non-pecuniary damage to Mr Babić;
(xi) BAM 10,000 in respect of non-pecuniary damage and BAM 1,500 in respect of pecuniary damage to the Pantićs;
(xi) BAM 20,000 in respect of non-pecuniary damage and BAM 1,500 in respect of pecuniary damage to the Slijepčevićs;
(xiii) BAM 20,000 in respect of non-pecuniary damage and BAM 1,500 in respect of pecuniary damage to the Savićs;
(xiv) BAM 5,000 in respect of non-pecuniary damage and BAM 1,500 in respect of pecuniary damage to Ms Alempić;
(xv) BAM 5,000 in respect of non-pecuniary damage and BAM 1,500 in respect of pecuniary damage to Ms Jurošević;
(xvi) BAM 15,000 in respect of non-pecuniary damage and BAM 1,500 in respect of pecuniary damage to the Jovićs;
(xvii) BAM 20,000 in respect of non-pecuniary damage and BAM 1,500 in respect of pecuniary damage to the Ristanovićs;
(xviii) BAM 15,000 in respect of non-pecuniary damage and BAM 1,500 in respect of pecuniary damage to the Simićs;
(xix) BAM 22,000 in respect of non-pecuniary damage to Mr Avramović;
(xx) BAM 15,000 in respect of non-pecuniary damage and BAM 1,500 in respect of pecuniary damage to the Šalipurevićs;
(xxi) BAM 5,000 in respect of non-pecuniary damage and BAM 750 in respect of pecuniary damage to Ms Mišić;
(xxii) BAM 26,000 in respect of non-pecuniary damage and BAM 1,050 in respect of legal costs to Mr Zlovolić;
(xxiii) BAM 25,500 in respect of non-pecuniary damage and BAM 2,024 in respect of legal costs to Mr Ćelić;
(xxiv) BAM 21,100 in respect of non-pecuniary damage and BAM 3,150 in respect of legal costs to Mr Borojević;
(xxv) BAM 28,000 in respect of non-pecuniary damage and BAM 1,165 in respect of legal costs to Mr Bera;
(xxvi) BAM 18,000 in respect of non-pecuniary damage, BAM 4,100 in respect of pecuniary damage and BAM 1,039 in respect of legal costs to Mr Stanković; and
(xxvii) BAM 20,000 in respect of non-pecuniary damage, BAM 1,500 in respect of pecuniary damage and BAM 400 in respect of legal costs to the Simendićs (this is the total amount awarded by the domestic judgments of 27 September 2000 and 16 October 2002).
7. The Banja Luka Court of First Instance issued writs of execution (rješenje o izvršenju) on 5 December 2000, 28 May 2002, 1 February 2002, 18 October 2000, 17 February 2003, 15 March 2001, 17 August 2001, 6 February 2003, 7 February 2003, 2 May 2004, 24 October 2001, 29 August 2001, 12 November 2001, 16 August 2001, 27 August 2001, 28 August 2001, 6 November 2001, 29 August 2001, 14 December 2001, 12 February 2001, 1 April 2002, 9 May 2003, 9 April 2001, 26 February 2001, 5 October 2004, 24 October 2005, 22 July 2002 and 16 June 2004, respectively.
8. The applicants complained of non-enforcement to the Human Rights Chamber or to the Constitutional Court. On 9 November 2005 and 8 March 2006 the Human Rights Commission (the legal successor of the Human Rights Chamber) found a breach of Article 6 of the Convention and Article 1 of Protocol No. 1 in the cases of Mr Vučanović, Mr Šavija, the Pilipovićs, the Grujićs, the Brkićs and Mr Avramović. On 20 December 2005, 12 April 2006, 9 May 2006, 26 June 2007 and 13 December 2007 the Constitutional Court ruled likewise in the cases of the remaining applicants. The applicants did not claim compensation, but even if they had done so, their claim would have most likely been refused (see, for example, the Constitutional Court’s decisions AP 774/04 of 20 December 2005, § 438; AP 557/05 of 12 April 2006, § 195; AP 1211/06 of 13 December 2007, § 79; and AP 244/08 of 8 December 2010, § 37).
9. After the extensive information campaign explaining the available options for the settlement of the Republika Srpska’s public debt (including its debt arising from domestic judgments), between 7 April 2008 and 1 March 2010 the applicants informed the authorities that they agreed to be paid only the legal costs in cash and the principal debt and default interest in bonds. Government bonds were then issued on the following dates:
(i) on 15 December 2008 to the Runićs and Ms Bjeljac;
(ii) on 30 October 2009 to Mr Gačić;
(iii) 30 October 2009 to Mr Višekruna;
(iv) 30 October 2009 to the Manojlovićs;
(v) 30 October 2009 to Mr Vučanović;
(vi) 15 June 2010 to Mr Šavija;
(vii) 15 December 2008 to the Pilipovićs;
(viii) 30 October 2009 to the Grujićs;
(ix) 15 June 2010 to the Brkićs;
(x) 30 October 2009 to Mr Babić;
(xi) 15 December 2008 to the Pantićs;
(xi) 15 December 2008 to the Slijepčevićs;
(xiii) 30 June 2008 to the Savićs;
(xiv) 30 October 2009 to Ms Alempić;
(xv) 15 December 2008 to Ms Jurošević;
(xvi) 15 June 2010 to the Jovićs;
(xvii) 15 December 2008 to the Ristanovićs;
(xviii) 30 June 2008 to the Simićs;
(xix) 30 June 2008 to Mr Avramović;
(xx) 30 October 2009 to the Šalipurevićs;
(xxi) 15 December 2008 to Ms Mišić;
(xxii) 30 October 2009 to Mr Zlovolić;
(xxiii) 30 October 2009 to Mr Ćelić;
(xxiv) 15 December 2008 to Mr Borojević;
(xxv) 15 June 2010 to Mr Bera;
(xxvi) 30 June 2008 to Mr Stanković; and
(xxvii) 15 December 2008 to the Simendićs.
10. At least 20 applicants have already sold some or all of their bonds on the Stock Exchange (namely, Mr Dušan Višekruna, Mr Zoran Vučanović, Mr Nikola Šavija, Ms Dobrila Pilipović, Ms Milica Pantić, Ms Slađana Pantić, Ms Jovanka Savić, Mr Milenko Savić, Ms Mira Savić, Mr Milivoje Savić, Ms Božica Alempić, Ms Milijana Jurošević, Mr Milutin Jović, Ms Marija Jović, Ms Gordana Šalipurević, Mr Milorad Šalipurević, Ms Zorica Mišić, Mr Jadranko Zlovolić, Mr Dušan Ćelić and Ms Ilinka Simendić).
11. Around 9,000 domestic judgments ordering the Republika Srpska to pay war damages (including those under consideration in the present case) became final by 29 November 2005. After a stay of several years on such civil actions under the War Damage Act 2005, a number of new judgments have been rendered since 2010. As pursuant to section 376 § 1 of the Civil Obligations Act 1978 and settled domestic case-law, such claims became statute-barred on 19 June 1999 (that is, three years from the cessation of the state of war), the total number of new judgments should not exceed 2,800 according to information provided by the Government in the context of the leading case concerning this matter (Čolić and Others, cited above). The thousands of cases, which were lodged after that date and were stayed between 2005 and 2010, would eventually be rejected as statute-barred.
Pursuant to the Domestic Debt Act 2004, only legal costs awarded by the domestic judgments in question are to be paid in cash, whereas principal debt and associated default interest are to be paid in government bonds which earn interest at an annual rate of 1.5%. There have thus far been five issues of bonds: on 30 June 2008 (to be amortised in ten annual instalments between 2014 and 2023), on 15 December 2008 (to be amortised in ten annual instalments between 2014 and 2023), on 30 October 2009 (to be amortised in ten annual instalments between 2014 and 2023), on 15 June 2010 (to be amortised in ten annual instalments between 2015 and 2024) and on 9 June 2011 (to be amortised in ten annual instalments between 2016 and 2025). If one is unable or unwilling to wait until the maturity of bonds, he or she may sell them on the Stock Exchange (their current price is around 40% of their nominal value). With the aim of making such bonds attractive, the Republika Srpska has accepted that they may be used to pay direct taxes accrued by 31 December 2007.
VIOLATED_ARTICLES: 6


ITEMID: 001-61748
LANGUAGEISOCODE: ENG
RESPONDENT: CYP
BRANCH: GRANDCHAMBER
DATE: 2004
DOCNAME: CASE OF AZINAS v. CYPRUS
IMPORTANCE: 1
CONCLUSION: Preliminary objection allowed (non-exhaustion of domestic remedies)
JUDGES: Luzius Wildhaber;Nicolas Bratza;Paul Mahoney
TEXT: 10. The applicant was born in 1927 and lives in Nicosia.
11. From the establishment of the Republic of Cyprus in 1960 and up to his dismissal from the public service, the applicant worked as Governor of the Department of Co-operative Development of the Public Service in Nicosia. On 28 July 1982 the Public Service Commission instituted disciplinary proceedings against him and decided to dismiss him retrospectively by reason of the fact that on 8 April 1981 he had been found guilty by the Nicosia District Court of stealing, breach of trust and abuse of authority. He had been sentenced to eighteen months' imprisonment. His appeal against both conviction and sentence had been dismissed by the Supreme Court on 16 October 1981.
12. The Public Service Commission held that the applicant had managed the resources of the above-mentioned department as if it were his private property and spent them for purposes other than those of the department. The disciplinary sanction of dismissal also resulted in the forfeiture of the applicant's retirement benefits, including his pension, in accordance with section 79(7) of the Public Service Law (no. 33/67), from the date of his conviction by the District Court. In Cyprus, pensions are part of the overall employment contract offered to public servants. The pension scheme is non-contributory.
13. On 8 October 1982 the applicant filed an application with the Supreme Court requesting that the decision to dismiss him from the public service be declared null and void. The applicant's main argument was that the decision had been taken in excess or abuse of power in that the sanction of dismissal, with the consequent forfeiture of retirement benefits, was disproportionate to the gravity of the offence. He also contended that the forfeiture was contrary to Article 12 § 2 of the Constitution, which guarantees the right not to be tried or punished twice. He alleged that the forfeiture of his pension rights and the sentence of imprisonment amounted to a double punishment for the same act.
14. By a judgment delivered on 12 June 1991, the Supreme Court rejected the applicant's application and confirmed the Public Service Commission's decision. In particular, the Supreme Court held:
“It has been established by case-law that the Supreme Court does not have the authority to intervene on the subject of the sanction imposed unless it is evident that the disciplinary body has exceeded the limits of its discretionary power.
The Supreme Court's powers in such issues bear no resemblance to its powers while exercising its jurisdiction over the appeal of the district courts' judgments, on which it has the authority to intervene when the decision on the sentence is either incorrect from the outset, evidently excessive or insufficient.
The assessment of the severity of such a disciplinary sanction is outside the limits of this Court's authority (see, among others, Cristofides v. CY.T.A., (1979) 3 C.L.R. 99, and Papacleovoulou v. the Republic, (1982) 3 C.L.R. 187, 196-197).
It has been repeatedly established ... in a series of judgments that an administrative court, during the judgment of an appeal against the imposition of a disciplinary sanction, does not as a rule have the authority to intervene in the essential judgment and assessment of the facts by the competent body. ...
Section 79(1) of Law no 33/67 enumerates a limited number of disciplinary sanctions that can be imposed under the provisions of the same Law. These sanctions include the sanction of dismissal, which, according to section 79(7) of Law no 33/67, results in the loss of all the entitlements upon discharge.
Having carefully examined the case file, as well as the relevant verbatim record, where the ratio decidendi and the statement of reasons are included in detail, I judge that the Public Service Commission imposed the sanction of dismissal on the applicant justly and lawfully, without exceeding the limits of its discretionary power. The Public Service Commission, as it is explicitly reported in the relevant transcript (see Appendix 8 of the Plea) took into account the applicant's various mitigating circumstances before reaching a decision. The Public Service Commission's discretionary power was not related to pension issues, but only to the matter of the sanction. The sanction imposed on the applicant entailed, according to the same Law, the forfeiture of all his entitlements upon discharge.
The judgment in Makrides v. the Republic, 2 R.S.C.C. 8, which the applicant's lawyer cited in order to support his submission that the provisions concerning the deprivation of an employee's pension rights are unconstitutional with respect to Article 23 §§ 1 and 2 of the Constitution, does not apply to the present case.
The submission by the applicant's lawyer that there is a contradiction with Article 28 of the Constitution remains unproved.”
15. The Supreme Court stated that it could review neither the severity of the sanction imposed by a disciplinary body, save if the latter had exceeded the limits of its margin of appreciation, nor the manner in which the body had assessed the facts of the case. It held that the discretion of the Public Service Commission only concerned the nature of the sanction, the loss of retirement benefits being the normal consequence of the particular sanction imposed by the commission.
16. On 18 July 1991 the applicant appealed on points of law to the Supreme Court sitting as a court of appeal. Five grounds were included in the notice of appeal. The fifth ground challenged the finding of the Supreme Court sitting as a first-instance court that the loss of retirement benefits was not contrary to Article 23 §§ 1 and 2 of the Constitution.
17. On 6 December 1996 the applicant filed an application for amendment of his grounds of appeal. The Supreme Court granted the application on 17 January 1997. Amended grounds 3 to 5 read as follows:
“(3) The finding of the first-instance court that the sanction that was imposed on the applicant by the Public Service Commission was not excessively onerous and disproportionate to the gravity of the offence committed and/or that the Public Service Commission took fully into account the mitigating circumstances during the consideration of the sanction and/or did not exercise its discretionary power in breach of procedure in determining the sanction is erroneous.
According to Article 12 § 3 of the Constitution, the law cannot provide for a penalty that is disproportionate to the gravity of the offence. The above constitutional requirement introduces in Cyprus the principle of proportionality, according to which there must be a connection (reasonable relation) between the measure taken and the intended purpose; the measure is proportionate only if it is necessary in relation to the facts of the case.
Despite the fact that during the assessment of the penalty the criminal court as well as the administrative body took into account and accepted a series of mitigating circumstances, and in particular that the applicant did not obtain any material gain, the sanction which was finally imposed on him is the heaviest sanction provided by law.
This is a sufficiently serious breach of the principle of proportionality, which was introduced by Article 12 § 3 of the Constitution and is applied in Cypriot jurisprudence and the practice of law itself, particularly in the interpretation of Article 23 of the Constitution. It also constitutes an act beyond the extreme limits that define the framework of actions of the administration when exercising its discretionary power.
(4) The finding of the court that the Public Service Commission imposed the sanction of dismissal on the applicant correctly and lawfully and without exceeding the limits of its discretion is erroneous.
The principle of a sanction that is not disproportionate to the gravity of the offence and the principle of proportionality during the assessment of the sanction in administrative proceedings certainly define the framework and/or limits of the administrative authority of the administrative body.
The fact that the administrative body adopted and/or took into account the serious mitigating circumstances in favour of the applicant during the assessment of the sanction, but did not avoid imposing the heaviest sanction provided for by law, is an act that lies beyond the extreme limits of the exercise of its discretionary power.
(5) The finding of the first-instance court that the loss of the applicant's pension rights is not contrary to Article 23 §§ 1 and 2 of the Constitution is erroneous.”
18. In his opening address on 14 September 1998, the applicant's lawyer, Mr Efstathiou, stated that he would only deal with the third and fourth grounds of the appeal. In particular, according to the verbatim record of the hearing on that date, the following exchange took place between the applicant's lawyer and the Supreme Court:
“Mr Efstathiou: ...
I will be very brief. Essentially, I will only deal with grounds 3 and 4 of the appeal.
Judge Chrysostomis: Do you withdraw the others?
Mr Efstathiou: Indeed, I do.
The Court: The remaining grounds of appeal are dismissed and we shall hear your position on grounds 3 and 4.
Mr Efstathiou: I will not deal with these grounds, because ground 1 is badly worded, while ground 2 is covered by grounds 3 and 4.
...
The penalties that can be imposed by the court are listed in section 79(1) of Law no. 33/67. These penalties go from (a) to (j), which means that ten different disciplinary sanctions can be imposed according to the gravity of the offence, each one more severe than the previous one, while the maximum sanction is dismissal. Section 79(7) states that dismissal entails the loss of all entitlements upon discharge.
I shall deal with the amended grounds 3 and 4, and thus ground 5 emanating from them.
Judge Chrysostomis: Will you deal with grounds 3 and 4 as a whole?
Mr Efstathiou: As a whole and the consequences thereof.
...
We cannot, therefore, and with all due respect to the court that delivered the judgment, accept that this Court cannot, in fact, intervene in the decisions of the Public Service Commission, when these deal with issues of sanction. It would, indeed, be extraordinary if this Court were competent to address the decisions of criminal courts, but not competent to address and examine whether the commission, which is a disciplinary court, exceeded the limits of its discretionary power. Not only would this be completely alien to the organisation and construction of the jurisprudence, it would also be extraordinary, because a court could intervene – and I am not saying that it would intervene on appeal, no it is not that. Given that the Court intervenes, why shouldn't it – even more so – intervene there?
...
Judge Chrysostomis: On the issue of disciplinary sanctions.
Mr Efstathiou:
...
When you examine the case, I plead with you to take into account the fact that the dismissal of the appellant resulted in forfeiture of his pension rights. This means that the consequence of his dismissal entailed the additional misfortune of the loss of his pension rights, which were a result of twenty years of contributions to the State. This service of twenty years and more, I submit with respect, creates for the appellant parallel rights to receive a pension, autonomous rights which are based on a legal framework that is independent and autonomous in comparison to other legislative regulations. The creation of public servants' pension funds is regulated separately and is created through deducting part of their emoluments. Thus, by imposing this sanction on the appellant, other parallel and autonomous rights were infringed, which should not escape the attention of the Supreme Court of Cyprus. These are acquired rights to which an employee is entitled to for every month of offering his service to the State, in parallel with the right to acquire the payment of a salary. For every month of work, he receives his salary and also has another entitlement, which is preserved in order to be given to him when he is discharged, and which at the same time constitutes an autonomous right. This is the right every employee has to a pension as part of his emoluments. He has another benefit, secret, hidden, but 'activated' from the day he leaves the service.
Consequently, the imposed sanction of dismissal has the following direct consequences, which are all contrary to constitutional rights and the fundamental principles of law and jurisprudence. [Firstly, it] renders the sanction particularly onerous and reinforces the argument that it was disproportionate to the gravity of the offence, which apart from constituting an abuse of discretionary power, violates Article 12 § 3 of the Constitution, which states that a penalty shall not be disproportionate to the gravity of the offence.
Secondly, it denies the applicant's right of property by which he is entitled to a pension for which he was has contributed part of his salary. The new Law no. 1/90 contains a revised section 79, which represents a somewhat incomplete regulation of this issue. Namely, when a public servant is dismissed, a pension is paid to his dependants as though he had died. This is unpleasant, but represents a solution that was found and agreed upon at the time.
...”
Judgment was reserved.
19. In the meantime, one of the members of the bench hearing the case was appointed Minister of Defence, and the Supreme Court decided to reopen the proceedings. The appeal was heard for a second time on 9 July 1999. The verbatim record of the hearing reads as follows:
“Mr Efstathiou: Your Honours, the facts of this case are, in simple terms, as follows:
...
I will deal with grounds 3 and 4 of the appeal and grounds 5 and 3 emanating from them. I will deal with all of them ...
Ms Koursoumba: In the previous court session, grounds 1, 2 and 5 were withdrawn.
Mr Efstathiou: Indeed, as I have said.
...
Judge Konstantinidis: For the sake of order, I see in the transcript of the previous hearing that you have withdrawn all the grounds of appeal, apart from 3 and 4.
Mr Efstathiou: Indeed.
...
In closing, we conclude that the appellant's twenty and more years of service have brought about pension rights – independent rights that are based on a legal structure which is independent and autonomous compared to other legislative regulations. Everyone contributes to the creation of the capital of the pension; the government also contributes; it is part of the employee's emolument. This sanction ... according to section 79(7) [entails the loss of all retirement benefits].
Therefore, the imposition of the sanction of dismissal, the direct consequence of which is the forfeiture of pension rights, has legal consequences that violate constitutional principles, essential rights and the case-law. The sanction is therefore particularly onerous.
Judge Konstantinidis: You also clarified it last time, but we must bring up the subject once more. We must realise that there is no issue of constitutionality of the law itself but that the subject is being discussed within the framework of the position you are advocating, that it was not reasonably permissible to impose such a sanction.
Mr Efstathiou: Because this is also a consequence of that. It is so. The imposition of the sanction exceeded the limits of the exercise of discretionary power and violated the constitutional principle of Article 12 § 3 that the penalty should not be disproportionate to the gravity of the offence. Thus, the principles of law, the principles of proportionality, the principles of not exceeding the extreme limits of discretionary power and of respect for the appellant's vested rights have been violated. I have told you all this before.”
20. Judgment was delivered on 20 July 1999, dismissing the appeal. The Supreme Court held as follows:
“...
The first-instance court held that the sanction of dismissal imposed on the appellant by the Public Service Commission was just and lawful and within the bounds of its discretion. Also, it stated that the commission had considered the various mitigating circumstances in favour of the applicant before it reached a decision, and that its discretionary power did not concern the issue of the appellant's pension, but only the matter of the sanction. The forfeiture of the appellant's entitlements following discharge was, under the same Law, a consequence of the sanction imposed on him.
In the end, the appeal was limited to two grounds, which are stated in the amended notice of appeal and which are the following:
'(1) The court's finding that the sanction imposed on the appellant by the Public Service Commission was not excessively onerous and disproportionate to the gravity of the offence and/or that the Public Service Commission did take the mitigating circumstances into account in their consideration of the sanction and/or that it did not exercise its discretionary power in breach of procedure in determining the sanction is erroneous.
(2) The court's finding that the sanction of dismissal imposed on the appellant by the Public Service Commission was just and lawful and within the limits of its discretionary power is erroneous.'
The position of the appellant's lawyer is that the principles of law relevant to criminal proceedings are implemented analogously in disciplinary proceedings. Whilst the commission accepted the existence of mitigating circumstances in the case under examination, such as the appellant's long service in the Cypriot struggle for liberation and the Co-operative Movement, and the fact that there was no material gain for him personally, it nevertheless imposed the heaviest sanction on him, rather than a sanction of, for example, compulsory retirement, which would also have resulted in his removal from service. The appellant stated that the sanction of dismissal was excessively onerous and disproportionate to the gravity of the offence and claimed that the principle of proportionality had been infringed, and thus argued that the commission had exceeded the extreme limits of its margin of discretion. In clarifying this position, he stated that he did not request the Court to change the case-law and interfere with the sanction imposed, but to declare the decision null and void on the ground that it exceeded the extreme limits of the commission's margin of discretion.
The respondent's lawyer contended that the judgment of the first-instance court was just and challenged the claims of the appellant's lawyer by arguing that the Supreme Court does not have the authority to interfere in matters of sanction, unless the disciplinary body had clearly exceeded the extreme limits of its margin of discretion. She also stated that the assessment of the facts and the severity of the sanction were beyond the jurisdiction of the Supreme Court.
We concur with the opening address of the respondent's lawyer. In fact, it has been established, under Article 146 of the Constitution, that the Administrative Court is not competent, amongst other things, to determine the severity of a disciplinary sanction.
...
The first-instance court, on examining the issue of the discretionary power of the commission, stated the following on page 9 of its judgment:
'Having carefully examined the case file, as well as the relevant verbatim record, where the ratio decidendi and the statement of reasons are included in detail, I judge that the Public Service Commission imposed the sanction of dismissal on the applicant justly and lawfully, without exceeding the limits of its discretionary power. The Public Service Commission, as it is explicitly reported in the relevant transcript (see Appendix 8 of the Plea) took into account the applicant's various mitigating circumstances before reaching a decision. The Public Service Commission's discretionary power was not related to pension issues, but only to the matter of the sanction. The sanction imposed on the applicant entailed, according to the same Law, the forfeiture of all his entitlements upon discharge.'
This conclusion of the first-instance court is correct. The commission chose to impose the severest sanction. This decision was within its jurisdiction. It has not been demonstrated that the commission did not act within the extreme limits of its margin of discretion, either due to the fact that it acted irrationally or due to the fact that it acted in breach of the principles of good administration, the latter including the principle of proportionality, on which the appellant's lawyer has essentially based his case.
The fact that the Public Service Commission imposed the severest sanction provided for by the relevant law even though it had established the existence of mitigating circumstances does not demonstrate that it did not act within the extreme limits of its margin of discretion. Evidently, as shown by its decision, it deemed that, despite the existence of mitigating circumstances, the seriousness and the effects of the offence were such that it was justified in imposing the severest sanction provided for by law. This follows from the commission's decision, in which, while highlighting the seriousness of the offences, it also referred to parts of the decision of the criminal court. Below is a quote from the Public Service Commission's decision:
'The Commission has no other choice but to consider the offences, on the grounds of which the public servant in question was sentenced to prison, as being of the gravest nature. As the judge who tried the case aptly said:
“The one and only aim of his actions was to promote himself as a person who could easily solve all of the problems on the island due to the financial strength of the Co-operative Movement, which he claimed to have founded himself. I should, at this point, underline the fact that he was managing the resources of the Mutual Fund as though they were his private property. However, he had no right to use the Fund's resources for purposes other than those for which the Co-operative Institutions had entrusted him with significant sums of money.
His bad faith is also evident, amongst other things, in the fact that he took great care to conceal the source of the funds whenever he made payments for purposes other than those for which he had been entrusted with the money. He viewed the Fund an inexhaustible source of resources that allowed him to be popular with those in positions of power as well as his friends.
The fact that large sums of money were given away to charities does not exonerate the defendant from responsibility for his actions. Philanthropic acts using funds provided by others do not constitute charity at all, but are merely acts of exploitation and self-promotion.” '
Following this and prior to reaching a decision on the sanction to be imposed, the commission also stated the following:
'A high-ranking official who shows such disregard for his responsibilities and duties as in the present case and who, additionally, so openly violates the law and/or the regulations of service in order to promote himself as a benefactor of society places himself out of the public service.'
For all the above reasons, the appeal is dismissed with all expenses to be paid by the appellant.”
21. At the material time, the relevant parts of section 79 of the Public Service Law (no. 33/67) read as follows:
“1. In accordance with the present Law, the following disciplinary penalties may be imposed: ...
(a) reprimand
(b) severe reprimand
(c) disciplinary transfer
(d) interruption of annual salary increase
(e) suspension of annual salary increase
(f) pecuniary penalty which cannot exceed three months' salary
(g) reduction in the salary scales
(h) reduction to the ranks
(i) compulsory retirement
(j) dismissal.
...
7. Dismissal entails the loss of all retirement benefits.”
22. A revised version of section 79(7) of the Law is now in force in Cyprus and provides as follows:
“Dismissal entails the loss of all retirement benefits. It is understood that a pension is paid to the wife or dependent children, if any, of a public servant who was dismissed as though he had died on the date of his dismissal and which will be calculated on the basis of his actual years of service.”
23. Under the provisions of the Public Service Law, the duties and responsibilities for posts in the public service are set out in the relevant “schemes of service”, approved by the Council of Ministers. According to the scheme of service for the post of Governor of the Department of Co-operative Development held by the applicant, the duties and responsibilities were as follows:
“Management of the Department of Co-operative Development and responsibility for the promotion, development and orderly operation of the Co-operative Movement in the island. Exercise of the power and duties provided by the relevant laws and regulations. Adviser to the Minister of Finance on co-operative matters. Represents the Co-operative Department in various committees and bodies. Performance of any other duties which may be assigned to him.”
24. A public servant's entitlement to a pension is governed by the Republic's Pensions Law, Chapter 311. Section 6 of this Law, which was in force at the time of the applicant's dismissal, provided that no pension, gratuity or other allowance shall be granted except upon retirement from the public service in one of the cases specifically enumerated. Section 6(f) referred to “the case of termination of employment in the public interest as provided in this Law”, that is section 7 of the Law, which in turn provided as follows:
“Where an officer'
25. Until 1967, section 5(1) of Chapter 311 provided as follows:
“No officer shall have an absolute right to compensation for past services or to pension, gratuity or other allowance; nor shall anything in this Law affect the right of the Crown to dismiss any other officer at any time and without compensation.”
This section was repealed by Law no. 9/1967, which came into force on 1 April 1967.
Furthermore, section 3(1) of the same Law, which read:
“Pensions, gratuities and other allowances may be granted by the Governor in accordance with the regulations contained in the Schedule to this Law to Officers who have been in the service under the Government of Cyprus ...”
was amended by Law no. 9/1967 by replacing the word “may” with the word “shall”.
Regulation 4, issued under Chapter 311, which provided:
“Subject to the provisions of the Law and of these Regulations, every officer holding a pensionable office under the Government of Cyprus, who has been in the service under the Government of Cyprus in a civil capacity for ten years or more, may be granted on retirement a pension at the annual rate of one six-hundredth of his pensionable emoluments for each complete month of his pensionable service.”
was also amended by Law no. 9/1967 by replacing the word “may” with the word “shall”.
26. Article 166 § 1 of the Constitution reads as follows:
“There shall be charged on the Consolidated Fund, in addition to any grant, remuneration or other moneys charged by any other provision of this Constitution or law
(a) all pensions and gratuities for which the Republic is liable ...”
27. Article 169 § 3 of the Constitution reads as follows:
“Treaties, conventions and agreements concluded in accordance with the foregoing provisions of this Article shall have, as from their publication in the official Gazette of the Republic, superior force to any municipal law on condition that such treaties, conventions and agreements are applied by the other party thereto.”
28. The relevant parts of Article 23 of the Constitution read as follows:
“1. Every person, alone or jointly with others, has the right to acquire, own, possess, enjoy or dispose of any movable or immovable property and has the right to respect for such a right. The right of the Republic to underground water, minerals and antiquities is reserved.
2. No deprivation or restriction or limitation of any such right shall be made except as provided in this Article.
3. Restrictions or limitations which are absolutely necessary in the interests of public safety or public health or public morals, or town and country planning or the development and use of any property for the promotion of the public benefit or for the protection of the rights of others, may be imposed by law on the exercise of such a right.
Just compensation shall be promptly paid for any such restrictions or limitations which materially decrease the economic value of the property; in case of disagreement, such compensation is to be determined by a civil court.
4. Any movable or immovable property or any right over or interest in any such property may be compulsorily acquired by the Republic, or by a municipal corporation or by a Communal Chamber for educational, religious, charitable or sporting institutions, bodies or establishments within its competence and only from the persons belonging to its respective community, or by a public corporation or a public utility body on which such a right has been conferred by law and only –
(a) for a purpose which is to the public benefit and shall be specially provided by a general law for compulsory acquisition which shall be enacted within a year from the date of the coming into operation of this Constitution;
(b) when such purpose is established by a decision of the acquiring authority and made under the provisions of such law stating clearly the reasons for such acquisition;
(c) upon payment in cash and in advance of just and equitable compensation, to be determined in case of disagreement by a civil court.
...”
29. The relevant parts of Article 146 of the Constitution read as follows:
“1. The Supreme Constitutional Court shall have exclusive jurisdiction to adjudicate finally on a recourse made to it on a complaint that a decision, an act or an omission of any organ, authority or person, exercising any executive or administrative authority is contrary to any of the provisions of this Constitution or of any law or is made in excess or in abuse of powers vested in such organ or authority or person.
2. Such a recourse may be made by a person whose any existing legitimate interest, which he has either as a person or by virtue of being a member of a Community, is adversely and directly affected by such decision or act or omission.
3. Such a recourse shall be made within seventy-five days of the date when the decision or act was published or, if not published and in the case of an omission, when it came to the knowledge of the person making the recourse.
4. Upon such a recourse the Court may, by its decision
(a) confirm, either in whole or in part, such decision or act or omission; or
(b) declare, either in whole or in part, such decision or act to be null and void and of no effect whatsoever; or
(c) declare that such omission, either in whole or in part, ought not to have been made and that whatever has been omitted should have been performed.
5. Any decision given under paragraph 4 of this Article shall be binding on all courts and all organs or authorities in the Republic and shall be given effect to and acted upon by the organ or authority or person concerned.
...”
30. The applicant attached to his further observations on the merits (dated 8 January 2002) in reply to the Government's observations a document established by the Pancyprian Public Employees' Trade Union on 7 January 2002, in which the following is specified:
“It is a well-known fact that the pension constitutes an integral part of the employment contract that the Cyprus government offers to all of its employees, namely civil servants.
This is a hard-earned right that the unions have secured over the years and the government has undertaken to pay such a pension as part of the employment contract. This can also be seen from the schemes of service that the government has.
A civil service position is accompanied by a compulsory retirement scheme, which consists of receiving certain retirement benefits at the end of one's employment, which include a monthly pension and a lump sum.
This is part of the overall employment package the government undertakes to provide, and civil servants contribute with their years of service and by having a certain amount deducted from their salary by way of taxes. This package is based on the employment relationship and the government has undertaken to finance it and provide it at the end of an employee's career.”


ITEMID: 001-78569
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF SHABANOV AND TREN v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;No violation of Art. 10;No violation of Art. 10;Non-pecuniary damage - financial award;Pecuniary damage - claim dismissed
JUDGES: Peer Lorenzen
TEXT: 5. The applicants were born in 1959 and 1963 and live in the town of Chernyakhovsk in the Kaliningrad Region. They are businessmen and founders of the Pravo Znat newspaper (“The Right to Know”).
6. On 27 April 2001 the applicants' newspaper published an article under the headline “What power costs: part 2” (“Сколько стоит власть-2”). The article gave a detailed account of the wages and benefits received by mid-range employees in the town council. The relevant extract read as follows:
“For the sake of clarity, let us look at the elements that make up the wages. Let's take, for example, those of the head of the legal department...
In total... 5,805 roubles.
Not bad for a twenty-year-old professional who recently graduated from a teachers' college.”
7. Ms P., the head of the legal department, brought a defamation action against the applicants. She submitted that she possessed higher legal education and more than three years of relevant experience, and that the article had harmed her authority in that it had sown doubts as to her professional qualifications.
8. On 13 June 2001 the Chernyakhovsk Town Court of the Kaliningrad Region heard the claim and gave judgment. It found that the applicants had been aware of the identity of the head of the legal department and they had intended to expose a specific person, namely Ms P. The court established that Ms P. had been appointed to her position in September 2000 after having completed a course of higher legal education. It found as follows:
“Having indicated in the article the salary of the head of the legal department and having referred to a twenty-year-old professional just out of college, the [applicants] related inaccurate information, given that Ms P., whom the [applicants] described as having graduated from a teachers' college four years previously, was at the material time the head of the legal department and had higher legal education.
The article 'What power costs: part 2' implies that municipal employees receive high wages, paid out of the budget, and cites as an example a young professional with college-level education and no work experience.
The court considers that such information damages Ms P.'s professional reputation and honour, in that it was disseminated to a large readership and begs the conclusion that the position of head of the legal department is occupied by an employee who lacks the requisite qualifications and work experience, which undermines the authority of the local administration and of Ms P.”
The court ordered the applicants to publish a rectification and pay 300 roubles (RUR, 12 euros (EUR)) each to Ms P.
9. On 20 June 2001 both applicants appealed against the judgment of 13 June 2001. They submitted that the information had not been proven to be untrue and that it had not undermined Ms P.'s authority. They also alleged a procedural violation, in that the case had been examined by a formation consisting of one professional judge and two lay judges, one of whom, lay judge Ms Kr., had participated in a previous hearing on 5 February 2001, whereas lay judges could only sit in court once a year and for no longer than fourteen days.
10. On 18 July 2001 the Kaliningrad Regional Court confirmed the judgment of 13 June 2001. It upheld the District Court's findings that Ms P. had graduated from a teachers' college, but noted that this had occurred in 1997 and that, by the time of her appointment, she had also completed higher legal education. The court concluded that the article had been intended to cast a shadow of doubt on Ms P.'s professional fitness and had thus damaged her reputation. As to the alleged procedural violation, the court held that the applicants had not proved that the lay judge in question had sat for more than fourteen days and stated that their allegations had been based on an erroneous interpretation of the Lay Judges Act.
11. On 19 January 2001 the applicants' newspaper published an article by Mr V. under the headline “The army with wet feet” (“Армия с мокрыми ногами”). The article related the living conditions of soldiers in a military unit where almost two hundred men had fallen ill because Mr K., the unit commander, had not provided them with dry footwraps or arranged for a place to dry their boots.
12. Mr K. sued the applicants and Mr V. for the protection of his honour, dignity and professional reputation and claimed compensation for non-pecuniary damage. As evidence of the non-pecuniary damage sustained, Mr K. enclosed a medical certificate issued by a psychiatrist. The certificate was made available to the applicants in their capacity as defendants.
13. On 13 July 2001 the newspaper published a follow-up article “There are different kinds of syndromes. But still no footwraps” (“Синдром синдрому рознь. И без портянок”). The article commented on various aspects of Mr K.'s statement of claim. The relevant part read as follows:
“So, our character '...had to visit a psychiatrist on 13 February 2001...'. 'Intellect with no peculiarities', noted the doctor, [who] found that K. had ... moderately pronounced asthenia syndrome and prescribed treatment. Asthenia means impotence, a kind of disease. It means that the commander of the regiment is not quite healthy. Or quite unhealthy?”
14. Mr K. subsequently supplemented his original statement of claim with a complaint about the publication of information on his state of health, which, in his opinion, was an unjustified interference with his right to respect for private life.
15. On 25 September 2001 the Chernyakhovsk Town Court of the Kaliningrad Region gave its judgment. The court established that the facts concerning the mass outbreak of illness among soldiers, described in the article of 19 January 2001, were accurate and dismissed Mr K.'s action in this part. However, it established that Mr K. had referred to his visit to a psychiatrist in his statement of claim, that only a limited number of people had access to the case file, and that Mr K. had not consented to having his diagnosis published in a newspaper. The court concluded that the article of 13 July 2001 violated Mr K.'s personal non-pecuniary rights, namely the right to inviolability of one's private life and personal and family secrets, which was protected by the Constitution. Relying on Article 151 of the Civil Code, it awarded him RUR 1,500 (EUR 55) and RUR 1,000 (EUR 37) against the first and second applicants respectively.
16. On 24 October 2001 the Kaliningrad Regional Court upheld on appeal the judgment of 13 July 2001. The court dismissed the applicants' argument that the public should have been informed of Mr K.'s state of health because he was the commander of a military unit.
17. Article 29 of the Constitution of the Russian Federation guarantees freedom of ideas and expression, as well as freedom of the mass media.
18. The relevant provisions of the Civil Code read as follows:
“1. An individual's life and health, dignity, personal integrity, honour and goodwill, professional reputation, the inviolability of one's private life, personal and family secrets, the right to liberty of movement and to choose one's place of temporary and permanent residence, the right to a name, copyright, other personal non-property rights and other incorporeal assets which a person possesses by virtue of birth or by operation of law shall be inalienable and untransferable by any means...”
“If certain actions impairing an individual's personal non-property rights or encroaching on other incorporeal assets caused him or her non-pecuniary damage (physical or mental suffering)... the court may impose on the perpetrator an obligation to pay pecuniary compensation for that damage...”
“1. An individual shall be entitled to claim, before a court, a rectification of information damaging his honour, dignity and professional reputation, unless the person who disseminated the information proves that it was true...
5. The individual about whom information damaging to his or her honour, dignity and professional reputation was disseminated shall be entitled to claim, in addition to rectification, compensation for pecuniary and non-pecuniary damage caused by the perpetrator.”
19. On 10 January 2000 the Federal Law on Lay Judges of Federal Courts of General Jurisdiction in the Russian Federation (“the Lay Judges Act” or “the Act”) came into effect. By section 1 (2) of the Act, lay judges are persons authorised to sit in civil and criminal cases as non-professional judges.
20. Section 2 provides that lists of lay judges must be compiled for every district court by local self-government bodies, such lists being subject to confirmation by the regional legislature. Section 5 determines the procedure for the selection of lay judges. It provides that the president of a district court is to draw random lots from a list of lay judges assigned to that court. The number of lay judges assigned to every professional judge should be at least three times as many as that needed for a hearing.
21. By section 9, lay judges are to be called to serve in a district court for a period of fourteen days, or as long as the proceedings in a particular case last. Lay judges may only be called for service once a year.
22. Civil cases may be examined by a formation comprising two lay assessors and a professional judge. In the administration of justice lay assessors enjoy the same rights as professional judges (Article 6).
23. Civil proceedings are public in all cases, except where a hearing in private is necessary for the protection of information concerning State secrets, intimate details of parties' lives or the confidentiality of adoption (Article 9).
24. Written evidence is read out in open court and made available to the parties and their representatives (Article 175).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 10