ITEMID: 001-104724
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF POPANDOPULO v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 3 (substantive aspect);No violation of Art. 3 (substantive aspect);Violation of Art. 13;Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);No violation of Art. 6-1;Remainder inadmissible;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Elisabeth Steiner;George Nicolaou;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska
TEXT: 6. The applicant was born in 1979 and is currently serving a term of imprisonment in correctional colony IK-18, Yamalo-Nenetsk Autonomous Region.
7. On 16 April 2005 the applicant was arrested on suspicion of murder.
8. On 18 April 2005 the Vsevolozhsk Town Court of the Leningrad Region decided to remand the applicant in custody.
9. On 23 April 2005 the applicant absconded, and on 25 April 2005 he was apprehended by the police.
10. On 29 May 2006 a deputy Prosecutor General of the Russian Federation approved the bill of indictment against the applicant, and on 2 June 2006 the case was sent to the Leningrad Regional Court for trial.
11. On 5 June 2006 the Leningrad Regional Court scheduled the preliminary hearing for 15 June 2006. It was subsequently adjourned until 20 June 2006 following requests filed by the applicant and some of his codefendants who had not received a copy of the decision of 5 June 2006.
12. On 23 June 2006 the criminal case was returned to the public prosecutor for rectification of the bill of indictment.
13. On 27 September 2006 the Supreme Court of Russia quashed the above-mentioned decision on appeal, and the case was resubmitted to the Leningrad Regional Court.
14. As a result of the preliminary hearing held on 7 November 2006, on 8 November 2006 the Leningrad Regional Court fixed the opening date of the trial for 6 December 2006. It was subsequently adjourned until 14 December 2006.
15. On 14 December 2006 the applicant requested the court to let K. represent him. However, on 21 December 2006 the court dismissed his request in view of the fact that K. had no law degree.
16. On 11 January 2007 the court began the examination of the evidence. However, owing to the non-attendance of certain witnesses, the applicant’s hospitalisation and the non-attendance of an interpreter, the hearing was adjourned until an unspecified date.
17. On 20 March 2007 the applicant requested leave for A. to represent him, but his request was dismissed because A. was the brother of one of the witnesses. Legal-aid counsel was appointed to represent the applicant.
18. Following the submission of the pleadings the proceedings were adjourned until 9 July 2007 to permit the parties to prepare their comments as to the substance and the wording of the questions to be put to the jury.
19. On 6 November 2007 the Leningrad Regional Court, following a jury trial, convicted the applicant of aggravated murder, theft, robbery and escape and sentenced him to life imprisonment. When determining the applicant’s sentence the court refused to take into account the time that the applicant had allegedly overspent in prison while serving his sentence in an unrelated criminal case.
20. During the trial the applicant requested the court to obtain the attendance of a witness on his behalf. However, the court refused his request in view of the fact that the testimony which the witness in question could have given was irr
21. However, the trial court granted the prosecutor’s request to read out the testimony given by one of the applicant’s co-defendants at the stage of the pre-trial investigation.
22. Later, the presiding judge several times drew the jury’s attention to the fact that the information provided during the trial concerning acts other than those with which the applicant was charged, including the statement by the applicant’s co-defendant, was of no relevance to the applicant’s case and was not to be taken into consideration when answering the questions put to the jury.
23. The applicant received a copy of the trial record with a one-month delay.
24. On 15 May 2008 the Supreme Court of Russia upheld the judgment on appeal. The applicant was represented by two lawyers of his own choosing.
25. On 5 July 2008 a copy of the appeal decision was served on the applicant.
26. On 25 February 2009 the Presidium of the Supreme Court of Russia quashed the appeal decision of 15 May 2008 by way of supervisory review and remitted the case for a new appeal hearing. The reason for the quashing was the fact that the applicant had been denied the opportunity to study the verdict.
27. On 23 July 2009 the Supreme Court of Russia upheld the judgment of 6 November 2007 on appeal.
28. From 6 May 2005 to 7 September 2008 and from 7 June to 17 September 2009 the applicant was held in detention facility IZ-47/1 in St Petersburg. He was held in cells nos. 29, 66, 74, 86, 360, 395 and 435 before his conviction and subsequently in cells nos. 47, 122, 124, 129, 130, 132 and 135, designed for inmates sentenced to life imprisonment. All the cells measured eight square metres.
29. Each cell was equipped with four sleeping places and accommodated a maximum of three inmates at any given time. The applicant had always had an individual bed and had been provided with the appropriate bedding (a mattress, a pillow, a blanket, two sheets and a pillowcase) and with tableware.
30. The cell windows, which measured 1 x 1.1 metres, were not covered with metal screens and therefore allowed sufficient daylight to enter so that the inmates could read and write. The cells were equipped with 60 to 75watt filament light bulbs which were on from 6 a.m. to 10 p.m. At night the cells were lit by 40-watt security lights.
31. All the cells were ventilated by means of a ventilation shaft. Natural ventilation via the windows was also available. The cells were equipped with a heating system providing a suitable temperature which was in line with health and safety standards. The average temperature during the summer was maintained at 22 degrees Celsius and during winter at 18 degrees Celsius.
32. The cells were equipped with toilets separated from the main area by 1.5 metre-high partitions.
33. The cells were equipped with drinking-water tanks. The inmates were also allowed to use electric water heaters.
34. The cells were also equipped with dining tables and benches corresponding to the number of detainees, as well as shelves and bedside tables for storage of personal items and foodstuffs.
35. The applicant could take a shower once a week for at least fifteen minutes.
36. He was given three hot meals a day on the basis of the established legal norms. The quality of the food was monitored on a regular basis by the medical staff of the detention facility.
37. The applicant was allowed a daily one-hour outside walk in the facility’s exercise yards, during which he could perform physical exercises. The exercise yards, measuring from 24 to 35 square metres, were equipped with benches, waste bins and sheds providing shelter from rain and snow. Sports equipment was provided to the detainees at their request.
38. The authorities ensured regular disinfection and pest control in the detention facility.
39. The applicant was provided with comprehensive medical assistance. The medical service of the facility was fully staffed with qualified personnel, medicines and medical equipment. On his arrival at the facility the applicant was examined by medical specialists; he made no healthrelated complaints and denied having tuberculosis, viral hepatitis, venereal or surgical diseases. Subsequently, when he underwent a forensic psychiatric examination, it was revealed that the applicant had viral hepatitis C. Throughout his stay in detention facility IZ-47/1 in St Petersburg the applicant did not show clinical signs of the abovementioned disease and therefore did not require any specialised treatment.
40. In support of their observations the Government provided several certificates issued by the governor of IZ-47/1 on 3 August and 11 August 2009, the results of a laboratory examination of the microclimate of cells nos. 435, 360 and 122 (dated 10 July 2005, 6 June 2006 and 2 December 2007 respectively), statements by wardens (not dated), the schedules for disinfection and pest control in the facility’s premises and a number of certificates concerning the food rations. The Government further provided copies of extracts from the registration log showing the number of detainees on certain days and in certain cells between May and December 2005, April and December 2006, October and November 2007 and February and March 2008. These extracts show that on 1 July and 8 July 2005 and on 2 October 2006, cell no. 435 accommodated four inmates; on 4 August 2005 cell no. 66 accommodated four inmates; on 18 November and 15 December 2005 cell no. 395 accommodated four inmates; and on 5 October and 9 October 2007 and on 10 November 2007 cell no. 86 also accommodated four inmates.
41. Cells nos. 29, 86, 360, 395 and 435 were equipped with six sleeping places (two three-tier bunks). They housed from four to six inmates at any given time. Cell no. 66 housed three inmates including the applicant and cell no. 74 housed two inmates including the applicant.
42. After his conviction on 6 November 2007 the applicant was held on his own in cells nos. 47, 122, 124, 129, 130, 132 and 135, which were reserved for inmates sentenced to life imprisonment at first instance pending the examination of their case on appeal (wing 2/1 with restricted access). Until the repairs in April-May 2008 these cells had not been equipped with bunk beds but with two concrete benches in each cell.
43. The windows in cells nos. 29, 66, 74, 86, 360, 395 and 435 were equipped with a double grid (one on the outside and one on the inside). In cells nos. 122, 124, 129, 130, 132 and 135 the windows were equipped with a triple grid (on the outside and the inside of the cell, as well as inside the window pane). In addition to the triple grid, densely spaced iron netting was fitted in front of the windows, which allowed very little daylight to enter. In cell no. 130 the window glass had been replaced with a layer of veneer, which also prevented daylight from entering the cell. The window in cell no. 132, in which the applicant had been held for two weeks in February 2008, faced a wall, in addition to the above-mentioned arrangements.
44. Until April-May 2008 the artificial lighting in cells nos. 122, 124, 129, 130, 132 and 135 consisted of one 60-watt filament light bulb per cell. The bulb was covered by a dust-laden lampshade above the entrance door.
45. Air shafts existed in cells nos. 29, 66, 74, 86, 360, 395 and 435, but did not function as they were clogged with waste. Cells nos. 122, 124, 129, 130, 132 and 135 did not have any air shafts. The heating system did not function in any of the cells where the applicant was detained until the repairs carried out in the facility in April-May 2008. The applicant had to sleep with his clothes on to keep warm in the wintertime.
46. There were no hot water taps or drinking-water tanks in the cells.
47. The lavatory was not separated from the living area and did not offer any privacy.
48. No bedding was provided to the applicant until November 2007 (until then he had used his own bedding). The bedding provided by the facility was very worn, torn and dirty. Inmates had to dry their laundry indoors, creating excessive humidity in the cells.
49. The shower was available once a week. At times it was only available once every ten days, every two weeks or even every three weeks.
50. The food was of extremely poor quality and in scarce supply.
51. None of the cells was equipped with a dining table or benches (because of the limited space). The inmates ate their food sitting on their bunks holding the plate.
52. The cells swarmed with spiders, worms, flies, cockroaches, bedbugs and mice. The applicant never witnessed any disinfection or pest control.
53. Outside exercise, which was supposedly available every day, was skipped on shower days and occasionally on other days for no apparent reason. The exercise yards were too small and did not offer sufficient room for any exercise (an average of five detainees being taken outside simultaneously).
54. The inmates were not provided with adequate medical assistance.
55. The applicant’s complaints about the conditions of his detention had availed nothing. Neither he nor the witnesses who could confirm his allegations were ever questioned on the circumstances of which he complained.
56. In support of his position the applicant made reference to the applications made to the European Court by B., T. and Z., in which they also raised an issue concerning compliance of the conditions of their detention in facility IZ-47/1 during the relevant period with the requirements of Article 3 of the Convention.
57. B., in particular, (see A.B. v. Russia, no. 1439/06, 14 October 2010) provided the following account of the conditions of his detention in wing 2/1 of facility IZ-47/1 of St Petersburg:
“36. On 29 October 2004 the applicant was placed in solitary cell no. 129 in wing 2/1 with restricted access. The wing was designed for the detention of inmates sentenced to life imprisonment.
37. On 19 January 2005 the applicant was transferred to solitary cell no. 123 in wing 2/1 with restricted access. According to the applicant, the cell was the equivalent of a disciplinary cell. ... The cell was in the basement where there was no central heating, and the winter temperature there was about 7-10oC.
...
71. The applicant submitted written statements by Mr A.M. and Mr N.M.
72. Mr A.M., who had been sentenced to life imprisonment, was kept in cells nos. 120, 122, 126, 128 and 141 of wing 2/1 of the remand prison on various occasions between June 2004 and July 2007. In his submission, wing 2/1 was reserved for inmates sentenced to life imprisonment at first instance pending the examination of their cases on appeal. The conditions of detention in all the cells were nearly identical. There were no chairs or desks in the cells. The beds were made of concrete. The cells were in a deplorable state. The humidity was high. There was no hot water or heating. The temperature in the cells in winter was as low as outside. There was no mandatory ventilation. Lavatory pans were not separated from the rest of the cells. All inmates in wing 2/1 were kept in solitary confinement. ...
73. Mr N.M. was sentenced to life imprisonment. He was kept in cell no. 121 of wing 2/1 of the remand prison. In his submission, all the cells in the wing were nearly identical. There was no furniture in the cells. The temperature in the cells in winter was as low as 3oC. There was no hot water. The cells were very humid so that the walls were covered with mould. The lavatory pans were not secluded. The food was of poor quality. ...”
58. Z. provided the following account of the conditions in wing 2/1 of facility IZ-47/1 in St Petersburg:
“From 30 March 2006 to 19 April 2007 and from 4 December 2007 to the present I have been detained in wing 2/1 of St Petersburg IZ-47/1. From December 2007 I was held in cell no. 129, and [the applicant] was held in cell no. 130. The conditions in those cells were horrible. The walls were half-destroyed. The ceiling was crumbling. The floor was made of concrete. The heating did not function; the cells were very cold. There were no hot water taps. Ventilation was non-existent. The cells were very dim since filament bulbs over 60 watts were prohibited; the only lamp in the cell was fitted with a 40-watt filament bulb ... The cells were overrun by rodents (rats, mice).
...
In April 2008 I was transferred to cell no. 134, and [the applicant] was moved to cell no. 135. The conditions in those cells were identical to the conditions described above.
On 12 November 2008 I was transferred to cell no. 121, and in June 2009 I learned that [the applicant] was being held in cell no. 119. The floor and the ceiling in these cells are painted, but they are crumbling; the concrete floor is covered with a piece of linoleum. The remaining conditions are identical to those described above. ...”
59. According to the applicant, on 28 October 2007 in the afternoon the door of the cell where he was being held (cell no. 74 at the time) burst open and two prison officers entered and ordered the applicant and his inmates to leave the cell. The purpose of the operation was to make the detainees abandon a collective hunger strike. As soon as the detainees left the cell they were attacked by the “Tayfun” special-purpose unit (отдел специального назначения “Тайфун” ГУИН). The officers of the unit wore balaclavas and used rubber truncheons to hit the detainees. The applicant saw that inmates from other cells were also being beaten up. As a result of the blows he received the applicant lost consciousness and regained it only when locked back in the cell.
60. On the following day the applicant was placed in the punishment cell for ten days for alleged disobedience. Since he could not walk after the beatings he was helped by two wardens.
61. According to the Government, a rubber truncheon was used against the applicant for the purpose of repelling an attack by him on a prison officer. They submitted a report on the use of a rubber truncheon against the applicant dated 28 October 2007, accompanied by a medical certificate drawn up following the examination of the applicant after the incident. The certificate recorded multiple abrasions in the area of the applicant’s back and a haematoma in the region of his right knee.
62. On 1 November and 2 November 2007 the applicant complained about the beatings to the public prosecutor’s office.
63. In its reply dated 14 December 2007 the St Petersburg public prosecutor’s office informed the applicant as follows:
“In the course of the inquiry [conducted into the applicant’s allegations of illtreatment] it was established that on 28 October 2007 the prison officers of SIZO-1 had been carrying out a technical inspection of cell no. 74 where [the applicant] was held at the material time. In the course of the inspection [the applicant] refused to comply with the lawful orders given by the prison officers. In order to put a stop to [the applicant’s] unlawful actions physical force and special means had been used against him in accordance with section 45 of the Federal Law on the detention of persons suspected of and charged with criminal offences.
...
Taking into account the foregoing, at the present time there are no grounds for the prosecutor’s office to intervene.”
64. Further, on 27 August 2008 an investigator from the Kalininskiy District investigating department of the St Petersburg public prosecutor’s office refused to institute criminal proceedings concerning the use of special means against the applicant. The decision read as follows:
“In the course of the inquiry it was established that on 28 October 2007 on the territory of IZ-47/1 a general search was conducted by prison officers of [the above facility] aimed at finding and seizing prohibited items. During the search certain detainees ... broke the rules by failing to abide by the lawful orders of the [prison officers] and insulting [them], as a result of which physical force and special means were used against them.
Therefore, physical force and special means were lawfully applied to [the applicant] since he had not abided by the lawful orders of the prison officers, a fact confirmed by the medical certificate, the report on the use of a rubber truncheon and the submissions by [four officers involved in the incident] ...”
65. On 27 July 2009 the acting head of the Kalininskiy District investigating department annulled the above decision, finding as follows:
“In the course of the study of the material in the case file it was established that the inquiry had been incomplete.
Therefore the decision [of 27 August 2008] was made prematurely and must be annulled.
In the course of the additional inquiry it is necessary to question [the applicant], to obtain and examine the [applicant’s] medical documents, to question the head of the “Tayfun” special-purpose unit, and to take other measures required in order to reach a decision.”
66. The applicant has yet to be informed of the outcome of the additional inquiry. No information was provided by the Government in that regard.
67. According to the applicant, he was beaten up by prison officers because of his complaints about the conditions of his detention.
68. According to the Government, physical force consisting in bending the applicant’s arm behind his back (загиб руки за спину) was applied to the applicant for the purpose of repelling an attack by him on a prison officer. They submitted a report on the use of physical force against the applicant dated 14 February 2008, accompanied by a medical certificate concerning the examination of the applicant after the incident. The certificate indicated that no visible injuries had been detected on the applicant’s body. The Government further submitted statements by three prison officers, according to which in the course of the search conducted in cell no. 130, where the applicant was detained at the material time, the latter had behaved defiantly, had threatened the prison officers, had not responded to warnings and had prevented the officers from carrying out the search. After a mobile phone had been found in the cell the applicant had pounced on one of the prison officers and the latter had had to use physical force against him. The applicant had displayed active physical resistance and had tried to administer blows and kicks, following which he had been forced to the floor. Since he continued to resist, a painful hold (болевой прием самбо) had been applied to him and he had been put back in the cell.
69. The applicant complained to the public prosecutor’s office about the beatings.
70. In its reply dated 25 April 2008 the St Petersburg public prosecutor’s office informed the applicant as follows:
“On 14 February 2008 prison officers of SIZO-1 conducted a search in cell no. 130 where you were detained at the material time. During the search you displayed resistance to the lawful orders of the prison officers. In order to put a stop to your unlawful actions physical force was applied in accordance with section 45 of the Federal Law on the detention of persons suspected of and charged with criminal offences.”
71. Neither party provided any other documents pertaining to the inquiry into the above incident.
72. Section 22 of the Federal Law of 15 July 1995 on the detention of persons suspected of and charged with criminal offences (the Detention of Suspects Act) provides that detainees should be given free food sufficient to maintain them in good health in accordance with the standards established by the Government of the Russian Federation. Section 23 provides that detainees should be kept in conditions which satisfy certain sanitary and hygienic requirements. They should be provided with an individual sleeping place and given bedding, tableware and toiletries. Each inmate should have no less than four square metres of personal space in his or her cell.
73. Section 44 of the Detention of Suspects Act provides that physical force, special means or weapons may be used against detainees for the purpose of preventing an offence and overcoming resistance to the lawful orders of officials in cases where non-violent means are not sufficient to put a stop to the offence or make a detainee comply with a lawful order.
74. Section 45 of the Detention of Suspects Act provides that special means (including rubber truncheons) may be used against detainees in the following cases:
(a) to put a stop to assaults on officials and other persons;
(b) to quell mass disorder or collective breaches of public order;
(c) to prevent unlawful actions of detainees resisting lawful orders;
(d) to free hostages, captured buildings, premises, structures or transport facilities;
(e) to prevent attempts to escape from custody;
(f) to prevent attempts to cause harm to others; and
(g) to prevent attempts to cause self-harm.
75. Abuse of office associated with the use of violence or entailing serious consequences carries a punishment of up to ten years’ imprisonment (Article 286 § 3 of the Criminal Code).
76. The Code of Criminal Procedure of the Russian Federation (Law no. 174-FZ of 18 December 2001, in force from 1 July 2002) states that a criminal investigation may be initiated by an investigator or prosecutor on a complaint by an individual (Articles 140 and 146). Within three days of receipt of such a complaint, the investigator or prosecutor must carry out a preliminary inquiry and make one of the following decisions: (1) to open criminal proceedings if there are reasons to believe that a crime has been committed; (2) to decline to open criminal proceedings if the inquiry reveals that there are no grounds to initiate a criminal investigation; or (3) to refer the complaint to the competent investigative authority. The complainant must be notified of any decision taken. The decision not to open criminal proceedings is amenable to appeal to a higher prosecutor or a court of general jurisdiction (Articles 144, 145 and 148).
VIOLATED_ARTICLES: 13
3
NON_VIOLATED_ARTICLES: 3
6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-79264
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF YUMAK AND SADAK v. TURKEY
IMPORTANCE: 2
CONCLUSION: No violation of P1-3
TEXT: 7. The applicants were born in 1962 and 1959 respectively and live in Şırnak. They stood for election in the parliamentary elections of 3 November 2002 as candidates of the People’s Democratic Party (DEHAP) in the province of Şırnak, but neither of them was elected.
8. Following the 1999 earthquakes Turkey went through two serious economic crises in November 2000 and February 2001. There then followed a political crisis, due firstly to the state of health of the then Prime Minister and secondly to the numerous internal divisions within the governing coalition, a grouping of three political parties.
9. It was in that context that on 31 July 2002 the Grand National Assembly of Turkey (“the National Assembly”) decided to bring forward the date of the next parliamentary elections to 3 November 2002.
10. In early September three left-wing political parties, HADEP, EMEP and SDP, decided to form a “Labour, Peace and Democracy Block” and to form a new political party, DEHAP. The applicants began their electoral campaign as the new party’s leading candidates in the province of Şırnak.
11. The results of the elections of 3 November 2002 in the province of Şırnak gave the DEHAP list 47,449 of the 103,111 votes cast, a score of about 45.95%. However, as the party had not succeeded in passing the national threshold of 10%, the applicants were not elected. The three seats allocated to Şırnak province were shared as follows: two seats for the AKP (Adalet ve Kalkınma – the Justice and Development Party, a party of the conservative right), which had polled 14.05% (14,460 votes), and one seat for Mr Tatar, an independent candidate who had polled 9.69% (9,914 votes).
12. Of the eighteen parties which had taken part in the elections only the AKP and the CHP (Cumhuriyet Halk Partisi – the People’s Republican Party, a left-wing party) succeeded in passing the 10% threshold. With 34.26% of the votes cast, the AKP won 363 seats, 66% of those in the National Assembly. The CHP, which polled 19.4%, obtained 178 seats, or 33% of the total. Nine independent candidates were also elected.
13. The results of these elections were generally interpreted as a huge political upheaval. Not only did the proportion of the electorate not represented in parliament reach a record level in Turkey (approximately 45%) but in addition the abstention rate (22% of registered voters) exceeded 20% for the first time since 1980. As a result, the National Assembly which emerged from the elections was the least representative since 1946, the year in which a multi-party system was first introduced. Moreover, for the first time since 1954, only two parties were represented in parliament.
14. To explain the National Assembly’s unrepresentativity, some commentators have referred to the cumulative effect of a number of factors over and above the existence of a high national threshold. For example, because of the protest vote phenomenon linked to the economic and political crisis, the five parties which had obtained seats in the 1999 parliamentary elections were unable to reach the 10% threshold in 2002 and were accordingly deprived of representation in parliament. Similarly, electoral fragmentation had an effect on the results in that numerous attempts to form pre-electoral coalitions had come to nothing.
15. The electoral system is one of the subjects which have been the most debated in Turkey; it still remains highly controversial.
16. The elections of 1950, 1954 and 1957 – in which the majority representation system was used – were unable to ensure an institutional balance between the majority in parliament and the opposition. This imbalance was one of the main reasons for the 1960 coup d’état. Following the intervention of the armed forces parliament adopted proportional representation, using the D’Hondt method, to strengthen pluralism and the political system. As a result, the elections in 1965 and 1969 produced stable majorities in the National Assembly while enabling small parties to be represented. However, in the elections of 1973 and 1977 the main political movements were unable to establish stable governments, although they had wide electoral support. That period of government instability was marked by the formation of one coalition after another, each made fragile by the disproportionate influence of the small parties on government policy.
17. Following the military regime of the years 1980 to 1983 Law no. 2839 on the election of members of the National Assembly, enacted on 13 June 1983, re-established proportional representation, with two electoral thresholds. To the 10% national threshold was added a provincial threshold (the number of electors divided by the number of seats to be filled in each constituency); in 1995 the Constitutional Court declared the provincial threshold null and void. In the 1983 parliamentary elections the Motherland Party (ANAP) obtained an absolute majority in parliament.
18. The parliamentary elections of 29 November 1987 likewise enabled the ANAP, with 36.31% of the vote, to form a stable parliamentary majority. Two other parties also won seats. About 19% of votes were cast in favour of parties which ultimately failed to reach the 10% threshold. In the elections of 20 October 1991 five parties gained seats in parliament. This result was due in particular to the fact that three small political parties (MÇP, IDP and HEP) had taken part in the elections under the banner of other political parties with the aim of circumventing section 16 of Law no. 2839, which makes it illegal to form joint lists before elections. The proportion of the votes cast in favour of parties not represented in the new parliament thus fell to 0.5%. The Government was based on a coalition of two parties. In those elections the eighteen candidates of the HEP (People’s Labour Party – pro-Kurdish) were elected to parliament on the list of the (social-democratic) SHP party; they later resigned from the SHP to join the ranks of their own party, the HEP.
19. In the general election of 24 December 1995 five parties gained seats in parliament. However, as none of them had a parliamentary majority, a coalition was formed. The proportion of the votes cast in favour of parties not represented in parliament came to 14%.
20. The 1999 parliamentary elections again resulted in no party having a parliamentary majority. Five political parties won seats in the National Assembly. A coalition of three parties formed a government. The proportion of the votes cast in favour of parties not represented in parliament came to 18%.
21. At present, numerous proposals to correct the effects of the 10% threshold have been put forward, both in parliament and by leading figures of civil society.
22. Article 67 § 6 of the Constitution, as amended on 23 July 1995, provides:
“Electoral laws must strike a balance between fair representation and governmental stability.”
23. Article 80 of the Constitution provides:
“Members of the Grand National Assembly of Turkey shall represent the whole nation and not the regions or persons which have elected them.”
24. Law no. 2839 on the election of members of the National Assembly, published in the Official Gazette on 13 June 1983, lays down the rules of the system for parliamentary elections.
25. The Turkish National Assembly has 550 members, elected in 85 constituencies in a single round of voting. They take place throughout the national territory, on the same day, under the proportional representation system. The suffrage is free, equal, universal and secret. Counting the votes and recording the results is done in public. Each province forms one electoral constituency.
26. Section 16 of Law no. 2839 provides:
“... [P]olitical parties may not present joint lists...”
27. Section 33 of Law no. 2839 (as amended on 23 May 1987) provides:
“In a general election parties may not win seats unless they obtain, nationally, more than 10% of the votes validly cast... An independent candidate standing for election on the list of a political party may be elected only if the list of the party concerned obtains sufficient votes to take it over the 10% national threshold...”
28. In allocating seats the D’Hondt system of proportional representation is used. That method – under which the votes cast for each list are first divided by a series of whole numbers (1, 2, 3, 4, 5 etc.) and seats then allocated to the lists which have the highest quotients – tends to favour the majority party.
29. In a judgment of 18 November 1995 (E. 1995/54, K. 1995/59) the Constitutional Court had the opportunity to rule on the constitutionality of section 34/A of Law no. 2839. That section, which referred to section 33 of the same law, also imposed the electoral threshold of 10% for the allocation of the seats for Assembly members elected in the “national constituency”.
30. The Constitutional Court declared the provisions establishing the national constituency null and void, but held that the 10% national threshold could be regarded as compatible with Article 67 of the Constitution.
The relevant passages of the judgment read as follows:
“... [T]he Constitution defines the Turkish State as a Republic... The constitutional structure of the State, which is based on national sovereignty, is a product of the nation’s will, mediated through free elections. That choice, emphasised in the various Articles of the Constitution, is set forth clearly and precisely in Article 67, entitled ‘The right to vote, to be elected and to engage in political activities’. Paragraph 6 of Article 67, as amended, provides that electoral laws must be framed in such a way as to strike a balance between the principles of ‘fair representation’ and ‘governmental stability’. The aim is to ensure that the electors’ will is reflected as far as possible [in] the legislature. ... [In order to] choose the system whose methods are most conducive to the expression of the collective will and the taking of collective decisions in the legislature, ... enacting the appropriate legislation in the light of the country’s specific circumstances and the requirements of the Constitution, it is necessary to opt for [the system] which is most compatible with the Constitution or to reject any system incompatible with it.
The impact of a representative democracy is visible in various fields. The effect of unfair systems adopted with the intention of ensuring stability is to hamper social developments. ... Where representation is concerned, the importance attached to fairness is the main condition for governmental stability. Fairness ensures stability. However, the idea of stability, in the absence of fairness, creates instability. The principle of ‘fair representation’ with which the Constitution requires [compliance] consists in free, equal, secret and universal [suffrage], with one round of voting and public access to the counting of votes and the recording of results, and produces a number of representatives proportional to the number of votes obtained. The principle of ‘governmental stability’ is perceived as a reference to methods designed to reflect votes [within] the legislature so as to guarantee the strength of the executive power. The ‘governmental stability’ which it is sought to ensure through the threshold (described as a ‘hurdle’), just like ‘fair representation’ ..., is protected by the Constitution. In elections ... importance must be attached to combining these two principles, which seem antinomic in certain situations, in such a way [as to ensure] that they counterbalance and complement each other...
In order to achieve the goal of ‘governmental stability’, set forth in the Constitution, a national [threshold] has been introduced...
Clearly, the [threshold] of 10% of the votes cast nationally laid down in section 33 of Law no. 2839 ... came into force with the approval of the legislature. Electoral systems must be compatible with constitutional principles ..., and it is inevitable that some of these systems should contain strict rules. Thresholds which result from the nature of the systems and [are expressed] in percentages, and [which] at national level restrict the right to vote and to be elected, are applicable [and] acceptable ... provided that they do not exceed normal limits... The [threshold] of 10% is compatible with the principles of governmental stability and fair representation...”
Three judges of the Constitutional Court disagreed with the arguments of the majority, considering that the 10% national threshold was incompatible with Article 67 of the Constitution.
31. In the same judgment, however, the Constitutional Court declared null and void an electoral threshold of 25% for the allocation of seats within provinces (provincial threshold). Holding that such a threshold was inconsistent with the principle of fair representation, it observed:
“Although a national threshold is imposed in parliamentary elections in accordance with the principle of ‘governmental stability’, imposing in addition a threshold for each electoral constituency is incompatible with the principle of ‘fair representation’.”
32. The Government referred to the report of the Ad hoc Committee for the Observation of Parliamentary Elections in Turkey (3 November 2002), produced on 20 December 2002. The relevant parts of the report read as follows:
“As widely reported by the media, two parties only out of 18 found their way into the new TBMM; the AKP (Justice and Development) and CHP (Republican People’s Party), leaving out all other parties, which had been represented so far in the parliament because they could not meet the 10% threshold. The party in government until the elections received only 1% of the votes. Economic and corruption problems were determining in the elections.
A clear and absolute majority has emerged with 362 seats for the AKP, 179 seats for the opposition and 9 seats for independent members. (These independent members are elected in small towns where they have a good reputation.) It should be recalled that AKP had 59 seats in the previous parliament, and the CHP three (1999 elections).
This situation might create probably greater stability in the country by avoiding complicated and unstable coalitions. On Monday 4 November 2002 the Turkish stock exchange went up by 6.1%.
However, it also means that approximately 44% of the voters have no representation in the Parliament.
The results must thus be considered as a clear protest vote against the establishment as a whole, since none of the three parties in the old governing coalition got enough votes for a single seat!”
33. The Council of Europe has not issued any binding standards for electoral thresholds. The question has not been raised in the organisation’s standard-setting texts. On the other hand, the Code of good practice in electoral matters, adopted by the Venice Commission, makes recommendations on the subject (see Venice Commission, “Code of good practice in electoral matters: Guidelines and explanatory report”, Opinion no. 190/2002). As a general principle, the Code requires suffrage to be direct, but in the case of a bicameral parliament it permits one of the Chambers to be elected by indirect suffrage. As for the electoral system to be used, the Code’s guidelines state that any system may be chosen.
34. Paragraphs 6 and 23 of Resolution 1380 (2004) on “Honouring of obligations and commitments by Turkey”, adopted by the Parliamentary Assembly of the Council of Europe on 22 June 2004, are worded as follows:
“6. With regard to pluralist democracy, the Assembly recognises that Turkey is a functioning democracy with a multiparty system, free elections and separation of powers. The frequency with which political parties are dissolved is nevertheless a real source of concern and the Assembly hopes that in future the constitutional changes of October 2001 and those introduced by the March 2002 legislation on political parties will limit the use of such an extreme measure as dissolution. The Assembly also considers that requiring parties to win at least 10% of the votes cast nationally before they can be represented in parliament is excessive and that the voting arrangements for Turkish citizens living abroad should be changed.
...
23. The Assembly therefore invites Turkey, as part of its authorities’ current reform process, to:
...
ii. amend the electoral code to lower the 10% threshold and enable Turkish citizens living abroad to vote without having to present themselves at the frontier;
...”
35. Although there is no uniform classification of types of ballot and electoral systems, it is usual to distinguish three main types: majority vote systems, proportional systems and mixed systems. In majority vote systems the winner is the candidate or list of candidates obtaining the majority of the votes in the decisive round of voting. This type of ballot makes it possible to vote in governments with clear parliamentary majorities, but at the same time it militates against the representation of minority political parties. Thus, for example, in the United Kingdom the use over many decades of a single round of voting in a single-member majority-vote system (“first past the post”), combined with the existence of two dominant political parties, has had the effect of giving few seats to other parties in relation to the number of votes that they obtain. There are other similar cases, in France for instance, where there is a majority-vote system spread over two rounds of voting. At the opposite extreme, the aim of the proportional representation system is to ensure that the votes cast are reflected in a proportional number of seats. Proportional representation is generally considered to be the fairest system because it tends to reflect more closely the various political forces. However, the disadvantage of proportional representation is that it tends to lead to fragmentation among those seeking electoral support and thus makes it more difficult to establish stable parliamentary majorities.
36. Currently, proportional systems are the most widely used in Europe. By way of example, Denmark, Spain, Estonia, Ireland, Luxembourg, Malta, Moldova, Norway, Poland, Portugal, the Czech Republic, Romania, Sweden, Bulgaria and Turkey have opted for one or other variant of proportional representation. There are also mixed systems containing various combinations of the two types of ballot (in Italy, Lithuania, Russia, Ukraine and Germany, for example).
37. In order to ensure stable majorities in legislatures elected by proportional representation, statutory electoral thresholds are often used. Thresholds are “limits, fixed or variable, defined in terms of the electoral result, which determine the share of a list or candidate in the distribution of seats”. However, the role played by thresholds varies in accordance with the level at which they are set and the party system in each country. A low threshold excludes only very small groupings, which makes it more difficult to form stable majorities, whereas in cases where the party system is highly fragmented a high threshold deprives many voters of representation.
38. Among the member States of the Council of Europe which use one or other variant of proportional representation in the context of a mixed system, and which set an electoral threshold, the following examples may be found. In Sweden a party must gain 4% of the votes cast nationally or 12% of the votes cast in the base constituency in which the seat is to be allocated. In Bulgaria a national threshold of 4% is imposed. In Liechtenstein it is necessary to pick up 8% of the votes cast nationally. In Denmark parties must either pick up 2% of the votes cast nationally or obtain a particular number of votes in two of the country’s three geographical zones. In the Netherlands there is a national threshold fixed at 0.67% of the votes cast.
39. As a general rule, the threshold fixed does not apply as such to coalitions, which must pass higher thresholds. In the Czech Republic, for example, the threshold for one party is 5%, whereas in the case of a coalition it is raised by 5% for each of the constituent parties. In Romania the base threshold of 5% is raised by 3%, and only a further 1% for coalitions with three or more members. In Poland the electoral threshold varies between 5% for local lists and 8% for national lists; for a coalition the threshold is set at 8% whatever the number of constituent parties. Following the same logic, the threshold for independent candidates is lower – 3% in Moldova, for example.


ITEMID: 001-154839
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF WIRTSCHAFTS-TREND ZEITSCHRIFTEN-VERLAGSGESELLSCHAFT MBH v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Pecuniary damage - award;Non-pecuniary damage - finding of violation sufficient
JUDGES: Nicolas Bratza
TEXT: 9. The applicant is the owner and publisher of the weekly magazine “Profil”.
10. In its issue 25/1998 of 15 June 1998 the applicant company published an article about Mr R., at that time a member of Parliament, and his cohabitee Mrs G. The article, with the title “Diary of an escape” and the subtitle “Report. Several myths are entwined around P. R.’s trip to Brazil. The reconstruction of a banal reality”, described the couple’s flight from Austria in April 1998 as Mr R. was suspected of having committed the offences of aggravated fraud (Betrug) and fraudulent conversion (Untreue). After an international arrest warrant had been issued, Mr R. was arrested in Brazil on 5 June 1998. At the time of the events, great public interest in the criminal proceedings against Mr R. existed. After Mr R.’s arrest, Mrs G. had given interviews on these events. The article was accompanied by a photo, which appeared on another page, showing Mrs G. standing beside Mr R.
11. The article and its context, namely a short text accompanying photos showing the couple’s hotel and a bar in Brazil, contained the following statements:
“...Thus, the Lower Austrian mutation of ‘Bonnie and Clyde’ started on the last part of their trip, a four hour bus ride... (Also brach die niederösterreichische Mutation von Bonnie and Clyde zur letzten Etappe, einer vierstündigen Busfahrt...auf.)
...The first two weeks, ‘Bonnie and Clyde’ hardly ever left the hotel... (Die ersten beiden Wochen verlassen ‘Bonnie und Clyde’ das Haus praktisch nie.)
...’Bonnie and Clyde’ from Lower Austria wish to rent the Mayor’s bar... (‘Bonnie und Clyde’ aus Niederösterreich wollen die Bar des Bürgermeisters pachten.)
...’Bonnie and Clyde’ are dreaming of a decent life as pub owners... (‘Bonnie und Clyde’ träumen von einem bescheidenen Leben als Barbetreiber.)”
The article, when describing the arrest of Mr R., further stated :
“C. G., against whom no suspicion exists, stays behind. (Zurück bleibt C.G., gegen die nichts vorliegt.)”
12. On 20 November 1998 Mrs G. brought proceedings against the applicant company claiming compensation for defamation under Section 6 of the Media Act (Mediengesetz). Further she requested supplementary measures under the Media Act, such as the publication of the judgment. She stressed that the applicant company, by publishing the article at issue, had committed the offence of defamation under the Criminal Code (Üble Nachrede).
13. She argued that the comparison with the famous criminals ‘Bonnie and Clyde’ from the thirties, whose story was the basis of a film produced in the sixties, could have given the impression that she was also involved in the offences of Mr R.
14. On 7 April 1999 the Wiener Neustadt Regional Court (Landesgericht) dismissed Mrs G.’s claim. It found that the average reader would have understood “Bonnie and Clyde” as a synonym for a couple on the run and that it had been a pictorial description with a humorous and entertaining message. It considered that the average reader would have connected “Bonnie” with a woman who follows her partner “through thick and thin” and that the characterisation as “Bonnie” did not amount to an accusation of having participated in the offences of Mr R.
15. On 4 November 1999 the Vienna Court of Appeal (Oberlandesgericht) quashed this decision and remitted the case to the Regional Court. It observed that “Bonnie and Clyde” had been violent criminals and found that the established connection between Mrs G. and “Bonnie” created an “inherent statement of having participated in criminal acts” even though “it had been expressly stated in the article that no suspicion had existed against Mrs G.”. It, therefore, concluded that the applicant company had committed the offence of defamation under Section 111 § 1 of the Criminal Code (Strafgesetzbuch) by publishing the article at issue and stated that its finding had to be taken into account by the Regional Court in its new decision.
16. On 3 February 2000 the Regional Court sentenced the applicant company to pay compensation of ATS 20,000 (1,453.46 euros) for defamation and to reimburse Ms G.’s costs of the proceedings and ordered it to publish an extract of its judgment in its magazine. Following the Court of Appeal’s line of argument it found, referring to the above mentioned passages of the incriminated article, that:
“... the well-known movie ‘Bonnie and Clyde’ described two ordinary people who make the American dream of liberty and wealth come true by stealing cars, robbing banks and killing people. (...) The reader primarily associates Bonnie with a criminal who had, together with her partner, robbed innumerable banks and had killed 14 persons within two years. (...) Nobody would have connected Bonnie only with a naive angel, who followed her partner devotedly but, rather, with a woman who would kill to assist the common purpose ‘escape’. (...) Beyond doubt the reader is forced to make a connection with capital crime. (...) The allegation of participating in criminal offences constitutes defamation within the meaning of Section 111 § 1 of the Criminal Code.”
17. On 22 March 2000 the applicant company filed an appeal and stressed, inter alia, that the incriminating passages had to be considered in connection with the article as a whole. It submitted that the article was written in an ironical style and could not have given the impression that Mrs G. had committed any criminal acts.
18. On 9 August 2000 the Court of Appeal dismissed the appeal and confirmed the Regional Court’s decision as a whole.
19. On 9 February 1999 Mrs G. applied to the Wiener Neustadt Regional Court for an injunction under Section 78 of the Copyright Act (Urheberrechtsgesetz) against the applicant company. She requested that the applicant company be ordered to refrain from publishing her picture without her consent in connection with reporting on the criminal proceedings against Mr R. or, in the alternative, that the applicant company be ordered to refrain from publishing her picture without her consent in connection with referring to her and Mr R. as “Bonnie and Clyde”. Furthermore, she requested an order for the publication of the judgment in the applicant company’s magazine.
20. She argued that the publication of her picture in connection with a report on the criminal proceedings against Mr R. violated her legitimate interests under Section 78 of the Copyright Act and that the comparison with the famous criminals “Bonnie and Clyde” could have given the impression that she had been involved in the offences of which Mr R. was accused.
21. The applicant company, in its observations, argued that the report at issue expressly mentioned that there were no criminal proceedings pending against Mrs G. and that the report was written in an ironical style and could not have given the impression that Mrs G. had committed any criminal acts. Moreover, she had willingly given interviews to the media and had her pictures taken by journalists. As regards the comparison of Mrs G. with “Bonnie”, the applicant company submitted that the reader of its magazine understood “Bonnie and Clyde” as a synonym for a couple on the run and not for violent criminals. Finally, it contended that the great public interest in the events justified the publication of Mrs G.’s picture.
22. On 19 February 1999 the Wiener Neustadt Regional Court granted an interim injunction (einstweilige Verfügung). It found the measure justified as the interest in the publication of Mrs G.’s picture violated her legitimate interests.
23. On 27 April 1999 the Court of Appeal allowed the applicant company’s appeal and dismissed Mrs G.’s application.
24. On 13 September 1999 the Supreme Court (Oberster Gerichtshof) partly allowed Mrs G.’s extraordinary appeal on points of law and granted the interim injunction she had requested in the alternative, i.e. it ordered the applicant company to refrain from publishing Mrs G.’s picture without her consent in connection with referring to her and Mr R. as “Bonnie and Clyde”.
25. The Supreme Court observed that Section 78 of the Copyright Act prohibited publishing a person’s picture if the publication violated that person’s legitimate interests and that the publication of her picture had to be considered together with the content of the published report. The court referred further to its case-law in which it had found that the publication of the picture of a spouse of a suspect was not of any informative value and that the concerned spouse’s interest in secrecy, therefore, outweighed the interest of information. The court found, however, that in the present case Mrs G. was far more involved in the case of Mr R. than simply being Mr R.’s cohabitee or girlfriend, as she had prepared the escape with him and had finally escaped with Mr R. Therefore, the applicant company’s interest in publishing her picture in principle outweighed Mrs G.’s legitimate interests in secrecy.
26. The court then argued that the text of the article at issue, compared Mrs G. with the female partner of the violent criminals “Bonnie and Clyde” and could give the impression to the readers of the magazine that Mrs G. as “Bonnie” had been involved in the criminal offences of her partner. The Supreme Court, thus, concluded that, although it seemed that Mrs G. had consented to the publication of her picture in connection with the criminal proceedings against Mr R., her legitimate interests were violated by the publication of her photo in combination with a comparison with the criminal “Bonnie”.
27. On 2 February 2001 the Wiener Neustadt Regional Court granted a permanent injunction prohibiting the applicant company from publishing Mrs G.’s picture while comparing her and Mr R. with “Bonnie and Clyde” or while connecting her with the commission of criminal offences.
28. On 3 May 2001 the Court of Appeal dismissed the applicant company’s appeal and ordered the applicant company to pay Mrs G.’s costs of the appeal proceedings.
29. On 12 September 2001 the Supreme Court, referring to its decision of 13 September 1999, rejected the applicant company’s extraordinary appeal on points on law. This decision was served on 2 October 2001.
30. Section 6 of the Media Act provides for the strict liability of the publisher in cases of defamation; the victim can thus claim damages from him. In this context “defamation” has been defined in Section 111 of the Criminal Code, as follows:
“1. As it may be perceived by a third party, anyone who accuses another of having a contemptible character or attitude, or of behaving contrary to honour or morality, and of such a nature as to make him contemptible or otherwise lower him in public esteem, shall be liable to imprisonment not exceeding six months or a fine ...
2. Anyone who commits this offence in a printed document, by broadcasting or otherwise, in such a way as to make the defamation accessible to a broad section of the public, shall be liable to imprisonment not exceeding one year or a fine ...
3. The person making the statement shall not be punished if it is proved to be true. As regards the offence defined in paragraph 1, he shall also not be liable if circumstances are established which gave him sufficient reason to assume that the statement was true.”
31. Section 78 of the Copyright Act, in so far as relevant, reads as follows:
“(1) Images of persons shall neither be exhibited publicly, nor in any way made accessible to the public, where injury would be caused to the legitimate interests of the persons concerned or, in the event that they have died without having authorised or ordered publication, those of a close relative.”
This provision has been interpreted in the Supreme Court’s case-law. In particular the Supreme Court has found that in determining whether the publication of a person’s picture violated his or her “legitimate interests” regard is to be had to the accompanying text. Where the publisher of the picture claims that there was a public interest in its publication, the courts have to carry out a weighing of the respective interests involved. As regards reporting on criminal cases, the Supreme Court has constantly held that there is no predominant public interest in the publication of the suspect’s picture if it has no additional independent information value. The only effect is that the intensity of such reporting is increased by attaching the suspect’s picture and, thus, making his or her appearance known to the public at large (see News Verlags GmbH & CoKG v. Austria, no. 31457/96, § 32, ECHR 2000-I, with reference to MuR 1990, p. 224; SZ 63/75, p. 373; MuR 1995, p. 64; MuR 1996, p. 33).
VIOLATED_ARTICLES: 10
VIOLATED_PARAGRAPHS: 10-1


ITEMID: 001-88621
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: SMITH v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
TEXT: The applicant, Mr Brian Smith, is a British national who was born in 1941 and lives in Southshields. He was represented before the Court by Mr P. Durkin, an appeals tribunal representative in Southshields. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant’s wife died on 9 April 1998. In 2002, the applicant made a claim for widows’ benefits, namely Widow’s Payment and Widow’s Pension. On 13 June 2002 the applicant was informed that his claim had been disallowed as he was not a woman. This decision was confirmed by an appeal tribunal on 2 August 2002. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under United Kingdom law.
The domestic law relevant to this application is set out in Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.


ITEMID: 001-68160
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF SYLVESTER v. AUSTRIA (NO. 2)
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 7. The applicant was born in 1953 and lives in Cincinnati, Ohio.
8. In April 1994 the applicant married an Austrian citizen. The marriage was concluded in the United States of America and the couple set up their common residence in Michigan. On 11 September 1994, their daughter was born.
9. On 31 October 1995, after his wife had left the United States with their daughter without obtaining the applicant’s consent and had set up her residence in Austria, he brought a petition for divorce in the Oakland Circuit Court (Michigan). He also introduced court proceedings in Austria requesting the return of his daughter under the 1980 Hague Convention on the Civil Aspects of Child Abduction.
10. On 2 November 1995 the applicant’s wife brought a petition for divorce in the Graz District Civil Court.
11. On 16 April 1996 the Oakland Circuit Court confirmed a default decree of divorce issued in January 1996, noting that Mrs Sylvester had failed to comply with the requirements for setting aside the default. Further, it awarded the applicant sole custody over the couple’s daughter and ordered that she should reside with him in case of her return.
12. On 5 June 1996 the applicant filed a request for recognition of the divorce decree with the Austrian Federal Ministry of Justice.
13. On 26 September 1996 the Federal Ministry of Justice refused to grant this request. Referring to Section 24 § 1 of the Fourth Implementing Regulation to the Marriage Act (4. Durchführungsverordnung zum Ehegesetz), it considered that a recognition of the divorce decree would be contrary to Austrian ordre public as the applicant’s wife, being the defendant in the proceedings before the Oakland Circuit Court, had not been heard as she was considered to be in default, despite the fact that the applicant’s petition for divorce had not been duly served on her.
14. Thereupon, on 15 November 1996 the applicant filed a complaint with the Administrative Court. The latter instituted preliminary proceedings on 25 November 1996.
15. On 9 January 1997 the Administrative Court received the observations of the Federal Ministry of Justice and, on 20 January 1997, it received the observations of Mrs Sylvester as a third party.
16. On 18 December 1998 the Administrative Court referred the case to the Constitutional Court requesting it to review the constitutionality of Section 24 § 1 of the Fourth Implementing Regulation to the Marriage Act.
17. It argued that Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms which has constitutional rank in Austrian law, applied to the proceedings concerning the recognition of foreign divorce decrees as their outcome had a direct effect on the civil law relationship of the persons concerned. However, it was incompatible with that Article that the Federal Ministry of Justice, an administrative authority, decided upon the request for recognition. The subsequent control by the Administrative Court was not sufficient where the subject matter, such as family law relations, fell within the very core of the notion of “civil rights”.
18. The Constitutional Court received the Administrative Court’s request on 19 February 1999. The Administrative Court submitted three further requests raising the same issue, which were received by the Constitutional Court on 13 July, 21 October and 12 November 1999, respectively. The proceedings in these cases were joined to proceedings in the applicant’s case.
19. On 4 February 2000 the Administrative Court supplemented its request in the applicant’s case.
20. On 28 February 2001 it supplemented its requests in the three other cases.
21. On 16 June 2001 the Constitutional Court gave its judgment, finding that Section 24 § 1 of the Fourth Implementing Regulation to the Marriage Act was in conformity with the constitution.
22. The Constitutional Court noted firstly that the proceedings at issue were concerned with the questions whether recognition was compatible with Austrian ordre public. Thus, the recognition of foreign divorce decrees was closely linked to the question whether they could be enforced in Austria. Referring to a number of decisions, in which the European Commission of Human Rights had found that Article 6 did not apply to enforcement proceedings, the Constitutional Court expressed doubts as to the applicability of Article 6.
23. Even assuming that Article 6 applied, referring to the Court’s Zumtobel v. Austria judgment (of 21 September 1993, Series A no. 268-A), the Constitutional Court held that the Administrative Court’s scope of review was sufficient, since proceedings concerning the recognition of foreign divorce decrees involved mainly questions of law. Where an assessment of facts was required, as for instance where the question arose whether an action had been duly served, the Administrative Court was empowered to review whether the administrative authority’s assessment was correctly based on the contents of the file.
24. On 5 October 2001 having resumed its proceedings, the Administrative Court dismissed the applicant’s complaint. The decision was served on the applicant on 29 October 2001.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-57623
LANGUAGEISOCODE: ENG
RESPONDENT: CHE
BRANCH: CHAMBER
DATE: 1990
DOCNAME: CASE OF GROPPERA RADIO AG AND OTHERS v. SWITZERLAND
IMPORTANCE: 2
CONCLUSION: No violation of Art. 10;Not necessary to examine Art. 13
JUDGES: C. Russo;N. Valticos
TEXT: 10. Groppera Radio AG, a limited company incorporated under Swiss law, has its registered office at Zug (Canton of Zug) and produces radio programmes.
Mr Jürg Marquard, Mr Hans-Elias Fröhlich and Mr Marcel Caluzzi are all Swiss nationals. Mr Marquard is a publisher and lives at Zug; he runs Groppera Radio AG and is its statutory representative and sole shareholder. Mr Fröhlich, who is a journalist and an employee of Groppera Radio AG, lives at Thalwil (Canton of Zürich). Mr Caluzzi is likewise employed by the company as a journalist and lives at Cernobbio in Italy but also has a home in Lucerne.
11. In 1979 an Italian private limited company, Belton s.r.l., built a radio station on the Pizzo Groppera - a 2,948 m peak in Italy, near Campodolcino, six kilometres from the Swiss border - for Groppera Radio’s predecessor, Radio 24 AG (see paragraphs 14-15 below). The station used a 50 kW transmitter and a directional aerial with a gain of about 100 kW, such that the apparent power radiated was of the order of 5,000 kW. Using this transmitter, the most powerful in Europe, the station broadcast to Switzerland over a distance of 200 km to the north-west and thus reached nearly a third of the country’s population, mainly in the Zürich area.
12. From 13 November 1979 to 30 September 1983 the Pizzo Groppera station was managed by Belton s.r.l. but operated by its owner, Radio 24 AG, a company that Mr Roger Schawinski had set up in order to evade the State broadcasting monopoly in Switzerland. The programmes, which were broadcast on VHF and were wholly financed by Swiss advertisers, were intended for listeners between the ages of 15 and 40.
13. On 7 June 1982 the Federal Council adopted an Ordinance on local radio trials, thereby ending the monopoly of the Swiss Radio Broadcasting Company. Nearly three hundred applications were made for trials of this kind, including one by Radio 24 AG, which wanted to serve the Zürich area.
14. On 20 June 1983 the Federal Council issued thirty-six licences. One of these went to Radio 24 AG, but it was issued on condition that the broadcasts from the Pizzo Groppera should cease after 30 September 1983.
Mr Schawinski agreed to this but sold the station on the Pizzo Groppera to Mr Marquard.
15. From 1 October 1983 Groppera Radio AG used the Pizzo Groppera station to broadcast, under the name of Sound Radio, a slightly altered schedule to the Zürich area, on the frequency that had been used by Radio 24. These programmes could be received not only by the owners of car radios and other personal sets but also by cable-network companies, which retransmitted them. They consisted of light music, information bulletins, commercials and programmes in which the programme-makers and listeners communicated directly or indirectly with each other by telephone or over the air. Like Radio 24, Sound Radio broadcast only in the Zürich dialect.
16. Swiss local radio stations began broadcasting from 1 November 1983 and attracted a large number of listeners. They came into competition with Sound Radio, mainly because they could finance themselves through advertising, subject to certain conditions. An opinion poll carried out in the Zürich area and published on 1 December 1983 showed that Radio 24 reached 60% of listeners and Sound Radio 12%.
17. On 17 August 1983 the Federal Council issued an Ordinance relating to the Act governing correspondence by telegraph and telephone ("the 1983 Ordinance") to replace another of 10 December 1973. It came into force on 1 January 1984 and contained general provisions applicable to the licensing scheme.
It created a third category of licence for receiving installations - community-antenna installations - which was additional to categories 1 (private receiving) and 2 (public receiving). By Article 78 § 1 (a) of the Ordinance,
"A community-antenna licence shall entitle the holder to:
(a) operate the local distribution network defined in the licence and rebroadcast by this means radio and television programmes from transmitters which comply with the provisions of the International Telecommunication Convention of 25 October 1973 and the international Radio Regulations and with those of the international conventions and agreements concluded within the International Telecommunication Union;
..."
18. From 1 January 1984 most of the Swiss cable companies ceased to retransmit the programmes put out by Sound Radio.
Some of them, however, including the community-antenna co-operative of Maur and the surrounding district (Genossenschaft Gemeinschaftsantennenanlage Maur und Umgebung - "the co-operative"), continued to broadcast them.
19. On 21 March 1984 the Zürich area telecommunications office of the national Post and Telecommunications Authority (PTT) informed the co-operative that Groppera Radio AG’s broadcasts, since they did not comply with the international rules in force, were unlawful, so that under Article 78 §§ 1 and 3 of the 1983 Ordinance retransmission was not covered by the community-antenna licence. It added that the co-operative would be committing an offence if it continued to retransmit them, and it required the co-operative to cancel within thirty days all the technical arrangements made for receiving and broadcasting the programmes in question.
20. On 31 July 1984 this order was confirmed by the national head office of the PTT.
21. The co-operative and two of its subscribers challenged this decision by bringing an administrative-law appeal in the Federal Court.
22. On 30 August 1984 the Pizzo Groppera transmitter was damaged by lightning. It ceased broadcasting and has never resumed since, although the applicants claimed that the damage was quickly repaired. Later, in an interview published in the Tages-Anzeiger Magazin on 13 December 1986, Mr Marquard acknowledged that he had made an error of business judgment in acquiring the radio station.
23. Groppera Radio AG joined the appeal by filing pleadings on 18 September 1984. It claimed that it too was a victim of the provisions of the 1983 Ordinance concerning community-antenna licences, as the restrictions they imposed considerably reduced the number of its listeners, thereby cutting its revenue and jeopardising its financial survival.
24. On 12 November 1984 the Federal Court informed the parties that it had learned that the Pizzo Groppera transmitter had been destroyed and would apparently not be repaired. As there was no interest in pursuing the proceedings, the court proposed striking out the appeals without taking a decision on the merits ("die Beschwerde ohne Sachentscheid abzuschreiben").
The applicants refused to consent to this.
25. The Federal Court gave judgment on 14 June 1985, after deliberating in public on the same day.
It ruled that the appeals were admissible inasmuch as they were directed not against the ban on retransmission itself but against the sanctions imposed by the PTT for disregarding the ban.
It went on to dismiss the appeals for the following reasons (translated from German):
"3. The Court can normally only hear an administrative appeal if the appellant has a live (present or future) interest in taking proceedings. If the interest in taking proceedings has ceased to exist, the case becomes purely academic and must not continue unless special circumstances require a decision on the merits, for example where it would otherwise not be possible to give a binding ruling on matters of principle in time ...
(a) the Maur community-antenna co-operative and its subscribers have only a contingent interest in taking proceedings, depending on whether Sound Radio is going to resume broadcasting; so long as there are no broadcasts, there is nothing to feed into the cable network. If it is highly unlikely that the broadcasts will be resumed, there is no need to examine the merits of the appeal.
Groppera Radio AG claimed to have made all the arrangements necessary for restarting its broadcasts in the event of the present appeal’s being held to have a suspensive effect (or of its succeeding). That statement, however, was unsupported by any evidence, although the burden of proof is on the appellant in this regard and Groppera’s submission is open to serious doubt. The company claimed to have ceased its broadcasts - independently of the consequences of the station’s having been struck by lightning - because of the PTT’s ban on retransmission. Other reasons may have weighed more heavily, however. With the arrival of experimental local radio stations and a third frequency for Radio DRS [Direktion Radio und Fernsehen der deutschen und rätoromanischen Schweiz], the transmitter on the Pizzo Groppera had to face serious competition, including that from Radio 24; the transmitter’s survival is accordingly no doubt in jeopardy irrespective of the ban on retransmission. That being so, Groppera Radio AG’s gratuitous statement that it was ready to resume its activities is not sufficient to prove that the Maur community-antenna co-operative and its subscribers have a live interest in taking proceedings. It follows that there is no need to examine the merits of their appeal.
The Court does not need to determine the question whether there might be a live interest if the transmitter resumed or had already resumed its broadcasts, which are incompatible with international telecommunications law - subject to any contrary decision by the Italian courts and, possibly, by an international court of arbitration.
(b) For the same reasons there is no need to consider the merits of the appeal brought by Groppera Radio AG.
The company cannot plausibly maintain that if its appeal succeeded, it would resume its activities - which have been made impossible, short of new investment, by a storm that occurred after the appeal was brought - and would, furthermore, have the financial means to do so.
Moreover, this case is a wholly exceptional one. Transmitters which broadcast in contravention of national or international law cannot usually survive for long. Matters are different as regards the Pizzo Groppera transmitter only because proceedings are still pending in Italy and because hitherto none of the means of settling disputes provided for in Article 50 of the International Telecommunication Convention ... has been used. It is unlikely that a second case of this kind will arise, if only because of the doubtful profitability of such transmitters. There is therefore insufficient justification for determining, with an eye to the future, the issues raised by the case, some of which are extremely sensitive.
In any case, even if it were to be held that Groppera Radio AG had a possible interest in taking proceedings, its claim to retransmit again, through the co-operative’s cable network, its probably unlawful ... broadcasts, after resuming them, would not deserve the law’s protection."
Lastly, the court made an order for costs against Groppera Radio AG since its appeal could not succeed as the company had breached the law by attempting to circumvent a ban on retransmission that had been imposed by the PTT and that, moreover, did not concern it directly.
26. From 13 November 1979 onwards Radio 24 (Sound Radio’s predecessor) broadcast to Switzerland from the Pizzo Groppera (see paragraph 12 above). On several occasions it changed its frequency in order to prevent interference with other radio stations.
On 21 December 1979, following complaints from the German and Swiss telecommunications authorities, the Italian Ministry of Post and Telecommunications prohibited Belton s.r.l. (the manager of the station - see paragraph 12 above) from continuing its operations and threatened to put its transmitter out of action. The transmitter closed down on 22 January 1980, was functioning again three days later and then ceased broadcasting on 29 January.
27. Belton s.r.l. brought proceedings in the Lombardy Regional Administrative Court, which on 11 March 1980 refused an application for a provisional broadcasting licence.
28. On 19 March 1980 the Chiavenna magistrate declared that the closing down of the transmitter was unlawful, and broadcasting resumed on 23 March.
29. On 3 October 1980 the PTT again demanded that the broadcasts should cease. On 11 October a second application (no. 2442/82) was made to the Lombardy Regional Administrative Court, but on 18 November that court refused a stay of execution. On 25 November the Pizzo Groppera transmitter closed down for the third time.
On 13 January 1981 the Consiglio di Stato granted an application for a stay of execution pending the proceedings in the Administrative Court, and Radio 24 began broadcasting again on 16 January.
30. In a judgment (no. 1515/81) of 1 October, which was filed at the registry on 4 December 1981, the Administrative Court held that Radio 24 was carrying on its activities in Italy unlawfully. The Pizzo Groppera station could not be considered as a local radio station under Italian law, since it had a broadcasting radius of more than 20 km and broadcast only to listeners living across the border. The court added that under Law no. 103 of 14 April 1975 ("new provisions concerning radio and television broadcasting"), the State had a monopoly of radio broadcasts intended for foreign countries. Lastly, the court upheld the closure order, which was executed on 21 January 1982.
31. On 4 May 1982, following an appeal by Belton s.r.l., the Consiglio di Stato adopted three decisions, the first of which was filed at the registry the next day and the other two on 26 October:
(i) an order (no. 124/82) staying execution of the judgment of 1 October 1981, so that Radio 24 was able to resume broadcasting on 9 May;
(ii) a judgment (no. 508/82) allowing the appeal in part and reserving a decision as to the rest; and
(iii) an order (no. 509/82) referring the case to the Constitutional Court - as sections 1, 2 and 45 of the 1975 Law appeared to raise a constitutional issue - and staying the proceedings.
32. The Constitutional Court gave its decision on 6 May 1987 in a judgment (no. 153/1987) which was filed at the registry on 13 May. It declared section 2(1) of the impugned Law to be unconstitutional as it did not make any provision for the possibility of broadcasting programmes abroad under licences issued to private companies by the State authorities.
33. The International Telecommunication Convention, which was concluded in the International Telecommunication Union on 25 October 1973 and revised on 6 November 1982, has been ratified by all the Council of Europe’s member States. In Switzerland it has been published in full in the Official Collection of Federal Statutes (1976, p. 994, and 1985, p. 1093), and in the Compendium of Federal Law (0.784.16).
Article 33, entitled "Rational Use of the Radio Frequency Spectrum", provides:
"Members shall endeavour to limit the number of frequencies and the spectrum space used to the minimum essential to provide in a satisfactory manner the necessary services. To that end they shall endeavour to apply the latest technical advances as soon as possible."
Article 35 § 1 reads:
"All stations, whatever their purpose, must be established and operated in such a manner as not to cause harmful interference to the radio services or communications of other Members or of recognised private operating agencies, or of other duly authorised operating agencies which carry on radio service, and which operate in accordance with the provisions of the Radio Regulations."
34. The Convention is supplemented and clarified by three sets of administrative rules: the Radio Regulations, the Telegraph Regulations and the Telephone Regulations. Only the first of these is relevant in the instant case.
35. The Radio Regulations date from 21 December 1959 and were likewise amended in 1982 and also on other occasions. They run to over a thousand pages and - except for numbers 422 and 725 - have not been published in the Official Collection of Federal Statutes. The latter contains the following reference to them:
"The administrative regulations relating to the International Telecommunication Convention of 25 October 1973 are not being published in the Official Collection of Federal Statutes. They may be consulted at the Head Office of the PTT, Library and Documentation, Viktoriastrasse 21, 3030 Berne, or may be obtained from the ITU, International Telecommunication Union, Place des Nations, 1202 Geneva."
Apart from number 584 (see paragraph 36 below), the provisions of the Radio Regulations relevant to the present case are the following:
"No transmitting station may be established or operated by a private person or by any enterprise without a licence issued in an appropriate form and in conformity with the provisions of these Regulations by the Government of the country to which the station in question is subject ..."
"In principle, except in the frequency band 3900-4000 kHz, broadcasting stations using frequencies below 5060 kHz or above 41 MHz shall not employ power exceeding that necessary to maintain economically an effective national service of good quality within the frontiers of the country concerned."
36. By number 584 of the Radio Regulations,
"Broadcasting stations in the band 100-108 MHz in Region 1 shall be established and operated in accordance with an agreement and associated plan for the band 87.5-108 MHz to be drawn up by a regional broadcasting conference (see Resolution 510). Prior to the date of entry into force of this agreement, broadcasting stations may be introduced subject to agreement between administrations concerned, on the understanding that such an operation shall in no case prejudice the establishment of the plan."
37. The work of the conference contemplated in this provision resulted in the adoption in 1971 of a regional convention better known under the name of the Darmstadt plan. This instrument, which was superseded in 1984 by the "Geneva plan", governed the use of the 100-108 MHz frequency band and laid down a procedure for considering new applications for frequency allocations; it also indicated the position and characteristics of the transmitters concerned.
38. Unlike Switzerland, Italy has not acceded to the plan. Nor have the two countries concluded an individual agreement as required before a transmitter can broadcast from one national territory to another.
39. The Swiss Government never jammed the broadcasts from the Pizzo Groppera in order to stop them. They did, however, make approaches to the Italian authorities and to the International Telecommunication Union.
40. Two delegations, one Swiss and one Italian, met in Berne on 29 and 30 November 1979 to study the "problem of external transmitters situated on Italian territory and broadcasting programmes to Switzerland". The minutes of the meeting mentioned the following points:
"1. The Italian delegation confirmed that on 22 November 1979 the ‘Ministero delle Poste e delle Telecomunicazioni’ sent a warning to the Belton company (Signor Fedele Tiranti) in Como, and receipt of the document was acknowledged on 23 November. The document stated that the transmitter had to confine the scope of its activities to Italian territory. Those in charge of the station had seven days in which to comply with this order, failing which their transmitter would be put out of action (disattivazione). The Swiss delegation expected immediate action. In accordance with the agreements concluded in Rome on 22 and 23 October 1979, the Italian delegation assured the Swiss delegation that the Italian Post and Telecommunications Authority would pursue the course of action already embarked on with the despatch of the warning (diffida), in order to halt the broadcasts to Switzerland. The Swiss delegation stated nonetheless that if nothing was done by 20 December 1979 and if the broadcasts still continued, the case would have to be submitted to the International Telecommunication Union (ITU).
2. As regards the external transmitters which were disrupting broadcasting in Switzerland, some measure of agreement was reached. The Italian side had already taken measures to implement the rules in force. One transmitter had even temporarily ceased functioning. Future arrangements would be examined on a case-by-case basis by the representatives of the two authorities, i.e. Mr Blaser for Switzerland and Mr Cito for Italy.
3. The Swiss delegation insisted on measures being taken, in accordance with the international agreements, against other transmitters sited in Italy which broadcast programmes intended mainly for Switzerland. The Italian delegation, which was willing to settle the problem in accordance with its international commitments, said that it could not for the time being participate in any official co-ordination procedure, mainly because there was currently no legal basis for it.
4. The Swiss delegation confirmed its position vis-à-vis the international agreements and stressed the need for them to be applied unrestrictedly by the co-signatory countries.
5. Given the importance of the issues in question, the two delegations decided to continue their negotiations early in 1980."
41. In a letter of 20 January 1987 the Radio Rights Division (Head Office of the PTT) submitted a request for assistance to the chairman of the International Frequency Registration Board (International Telecommunication Union).
It indicated inter alia:
"In Italy, especially in the Po valley, there are a large number of private radio and television broadcasting stations transmitting on frequencies which have not been co-ordinated with the Swiss Post and Telecommunications Authority. This state of affairs contravenes Articles 2 and 4 of the regional broadcasting agreements (Stockholm 1961, Geneva 1984) and numbers 1214 and 1215 of the Radio Regulations, international agreements to which the Swiss and Italian authorities are parties.
Some of these stations broadcast programmes and advertising designed for listeners in neighbouring Swiss towns and employ power exceeding that necessary to maintain economically an effective national service of good quality within the frontiers of the country concerned, contrary to number 2666 of the Radio Regulations. Furthermore, these private stations interfere with the proper functioning of Swiss radio services. To give a better picture of the situation, we are enclosing copies of the reports of harmful interference that we have sent to the Italian authorities (since 1984), pursuant to Article 22, Appendix 23 of the Radio Regulations. You will also find a summary table of Italian private radio stations which, through their presence on the airwaves, are preventing the implementation of our frequency allocations.
For more than six years now, the various representations made by the Swiss PTT to the Italian authorities with a view to a co-ordination of effort have unfortunately produced no significant result. It is for this reason that before, if need be, taking the steps provided for in Article 50, number 189, of the International Telecommunication Convention (Nairobi, 1982), the Swiss authorities request the Board to take, as soon as possible, all necessary measures to remedy this situation."
42. On 8 July 1988 the chairman of the International Frequency Registration Board sent the Head Office of the Swiss PTT a copy of a letter sent the same day to the Italian Ministry of Post and Telecommunications informing it that frequency allocations were being used in breach of the Radio Regulations and regional agreements.
The most recent of the Board’s representations to the Italian authorities was made in a telefaxed message on 29 November 1988, which read:
"1. The Board has yet to receive any information about the solution of the cases of harmful interference reported by the Swiss authorities. Similar cases of harmful interference have recently been reported by the authorities of two other States.
2. On behalf of the International Frequency Registration Board I wish to express serious concern at the apparent lack of progress in eliminating the harmful interference caused to radio and television broadcasting stations in Switzerland and at the fact that a chaotic situation seems to have developed in the region which, to say the least, renders the existing international treaties nugatory.
3. In your letter of 8 August 1988 you informed the Board that an agreement had been reached with the Swiss authorities, but no practical measure seems to have been taken. Your Department has not yet replied to the Board’s letters of 3 April 1987, 21 August 1987 and 25 October 1988 and has not submitted any comments - as it was required to do under RR [Radio Regulations] 1444 - on the Board’s investigation pursuant to RR 1438 and RR 1442 into the harmful interference caused to the Swiss authorities’ radio and television broadcasting stations which was reported to you in the Board’s letter of 8 July 1988.
...
6. The Board wishes to draw your Department’s attention to the extremely serious situation currently prevailing.
In particular:
(I) The Board has concluded that the Italian authorities have failed to comply with the obligations which they freely undertook to fulfil in the International Telecommunication Convention, the Radio Regulations and the regional agreements.
(II) More than a hundred Italian stations are currently causing persistent harmful interference to officially authorised stations in three neighbouring countries.
(III) No means has been found of reducing this major interference, which continues to increase.
(IV) There has been no specific reply to the Board’s letters.
7. In view of this situation, which has existed for several years now and has recently become alarmingly serious, the Board is bound to consider taking further measures with a view to overcoming the serious consequences for the authorities of France, Switzerland and Yugoslavia of the Italian authorities’ failure to fulfil their obligations.
8. Copies of this telefax are being sent to the authorities of France, Switzerland and Yugoslavia."
The Board never received any reply from the Italian authorities.
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