ITEMID: 001-58456
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 2000
DOCNAME: CASE OF MAZUREK v. FRANCE
IMPORTANCE: 1
CONCLUSION: Violation of Art. 14+P1-1;Not necessary to examine Art. 14+8;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 7. The applicant, Claude Mazurek, is a French national who was born in Avignon in 1942 and lives at La Grande-Motte.
8. The applicant’s mother died on 1 August 1990 of HIV (human immunodeficiency virus) encephalopathy, having been infected after a blood transfusion. She left two children: a son, Alain, born out of wedlock in 1936 and legitimised by his mother’s marriage in 1937, and the applicant, born in 1942, on whose birth certificate only his mother’s name was entered as a parent, she being still married at the time of his birth, but living separately from her husband. They divorced in July 1944.
9. On 30 April 1991 Alain brought an action against the applicant in the Nîmes tribunal de grande instance seeking an order that his mother’s estate be divided by a notary, that the applicant, as an adulterine child, could not lay claim to more than a quarter of it and that there be deposited with the notary a sum of money unlawfully withdrawn by the applicant from his mother’s account and transferred to a personal account while their mother was in a coma.
10. In his pleadings, the applicant agreed to the appointment of a notary to divide the estate, but submitted that Article 760 of the Civil Code, which restricts the inheritance rights of adulterine children, was discriminatory and incompatible with Articles 8 and 14 of the Convention, the provisions of the United Nations Convention on the Rights of the Child and Article 334 of the Civil Code, which enshrines the principle that children born in wedlock and children born out of wedlock have equal rights. He requested the court to hold that he had the same inheritance rights as a legitimate child. He also submitted that the amount which he had been requested to deposit with a notary had been transferred as a gift which he was not required to bring into account, as evidenced by a letter from the deceased of 20 January 1988, a general power of attorney for bank transactions, dated 2 February 1988, and witness statements.
11. In a judgment of 21 January 1993 the court ordered the estate to be divided. With regard to the applicant’s rights, it referred to Article 760 of the Civil Code (see paragraph 17 below).
The court conceded that Article 760 of the Civil Code represented a derogation from the principle, enshrined in the first paragraph of Article 334 of the Civil Code, that children should be treated equally regardless of descent, but held that its purpose was not to discriminate between children on the grounds of their birth but to ensure minimum compliance with marital commitments on the part of the married parent who engenders an illegitimate child. It accordingly concluded that Article 760 was necessary in order to protect the rights of others and that it was a principle of public policy which was not contrary to the Convention.
In respect of the sum which had been withdrawn by the applicant and transferred to his own account, the court held that the applicant had merely executed his mother’s intention to gift him a sum of money in addition to his share in the estate and that although that gift should notionally be brought into account in calculating the disposable portion of the estate, it was inappropriate as matters stood to order that the amount in question be deposited with the notary dividing the estate.
12. The applicant appealed, arguing, among other things, that Article 760 of the Civil Code was incompatible with Articles 8 and 14 of the Convention and Article 1 of Protocol No. 1.
13. In a judgment of 24 March 1994, the Nîmes Court of Appeal upheld the provisions of the lower court’s judgment ordering the estate to be divided and determining the applicant’s inheritance rights. It considered, however, that the amount transferred to the applicant’s account should be returned to the estate to be divided because he had not proved that his mother had intended it as a gift.
14. With regard to the complaint that the discrimination between legitimate children and adulterine children was incompatible with the provisions of the Convention, the Court of Appeal held:
“In the instant case the provisions of Article 760 of the Civil Code, which limit the inheritance rights of adulterine children, are directly linked to the French legal principle of public policy according to which marriage should be monogamous and the interests of the spouse and legitimate children of an adulterer protected.
Article 760 was not enacted in order to disadvantage adulterine children, but to protect the interests of the spouse and legitimate children of an adulterer; the provision does not therefore intentionally discriminate against adulterine children, but ensures the protection of children born of the marriage who might be disadvantaged on the division of their parents’ estate by the presence of an adulterine child who, on account of the predecease of the non-adulterous spouse and the system of matrimonial property elected by the spouses, might otherwise inherit from his or her parent both the assets from that parent’s estate and the assets from the estate of the spouse who is not his or her parent.
The court was thus properly entitled to hold that it was not the intention of the legislature to discriminate between children on the grounds of their birth, but to ensure minimum compliance with the marital obligations of a married parent with regard to his or her legitimate children; the court was also properly entitled to hold that Article 760 of the Civil Code was a provision necessary for the protection of the rights of others, that it was a French legal principle of public policy and that it was not contrary to the European Convention on Human Rights.”
15. The applicant appealed on points of law to the Court of Cassation, which delivered its judgment on 25 June 1996.
With regard to the applicant’s complaint of unjustified discrimination on grounds of birth between children born in wedlock and children born out of wedlock, contrary to Articles 8 and 14 of the Convention, the Court of Cassation held that inheritance rights had nothing to do with respect for private and family life guaranteed by Article 8 of the Convention.
In respect of the complaint that the Court of Appeal had ordered the sum transferred to the applicant’s account to be returned to the estate to be divided, the Court of Cassation held that in deciding that the facts of the case had not shown any intention on the part of the deceased to bestow a gift on her son in advance of the division of her estate the Court of Appeal had determined an issue which it alone had jurisdiction to determine.
16. On 14 January 1994 the Commission of the Compensation Fund for Transfusion Patients and Haemophiliacs awarded the applicant, in his personal capacity, compensation of 40,000 French francs (FRF) and assessed the deceased’s loss at FRF 500,000, to be paid to her heirs. That amount was thus paid to the notary dealing with the estate and the applicant subsequently received one quarter of it.
17. The relevant provisions of the Civil Code, introduced by Law no. 72-3 of 3 January 1972, provide:
“Children or their issue shall inherit from their father and mother, grandfathers, grandmothers or other ancestors, irrespective of sex or primogeniture, and even if they are born of different marriages.
The estate shall devolve upon them in equal portions and per capita if they are all first degree issue and heirs in their own right; they shall inherit per stirpes if all or some of them inherit through their ascendants.”
“Children born out of wedlock shall, in general, inherit from their father and mother or other ancestors, as well as from their brothers and sisters or other collateral relatives, on the same terms as legitimate children.”
“Children born out of wedlock whose father or mother was, at the time of their conception, bound by a marriage of which legitimate children were born are entitled to inherit from that parent in competition with the legitimate children; however, they shall each receive only half of the share to which they would have been entitled if all the children of the deceased, including themselves, had been legitimate.
The children born of the marriage injured by the adultery shall inherit in addition the fraction by which the adulterine child’s share of the estate is thus reduced; it shall be divided between them in proportion to their share in the estate.”
18. The relevant provisions of the United Nations Convention on the Rights of the Child, which came into force on 2 September 1990, read as follows:
“1. States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.
2. States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child’s parents, legal guardians, or family members.”
19. In a report entitled “Status and Protection of Children”, adopted in May 1990, the Conseil d’Etat referred to the issue of equal treatment of children regardless of descent in the following terms:
“The restriction of adulterine children’s inheritance rights is the subject of much criticism. It appears to be in direct conflict with the principle that children should be treated equally regardless of descent and constitutes an infringement of the principles enshrined in the Civil Code according to which children born out of wedlock have, in general, the same rights as children born in wedlock. Such discrimination, based on descent, also appears to be contrary to the European Convention on Human Rights and to the Convention on the Rights of the Child. It should therefore be abolished.”
The Conseil d’Etat’s report also sets out socio-demographic data. It emerges from the report that as at 1 January 1990 one in ten children had been born out of wedlock, this being true of more than one in four births in 1988. In addition to that, major shifts in family models appeared during the second half of the 1970s, “with a 30% decrease in the annual number of marriages between 1975 and 1985, 2.5 times more births out of wedlock over the same period, and a rise in the number of cohabiting unmarried couples so sharp that it is now the typical first union for two in three French citizens ... as for divorces, the annual figure had already almost doubled between 1960 and 1975, and it doubled again during the next ten years”.
20. A government bill, registered on 23 December 1991 (no. 2530), proposed bringing the inheritance rights of adulterine children into line with that of other children. It was subsequently abandoned.
21. On 3 February 1998 the Minister of Justice instructed Mrs Irène Théry, a sociologist, to study shifts in family models. The report, entitled “Couples, Descent and Kinship today” was submitted on 14 May 1998. It found that there was no sociological fracture according to whether couples were married or not, and criticised the inegalitarian status of adulterine children.
22. In August 1998 a working group on family law was set up by the Minister of Justice to consider, among other things, “possible changes to the law in the light of factual developments” in order to avoid “a gulf developing between [citizens’] aspirations and the law”. Chaired by Professor Françoise Dekeuwer-Defossez, the commission submitted its report on 14 September 1999. It contained a set of proposals for “renovating family law”. In particular, the commission recommended “giving full effect to the principle that children should be treated equally regardless of descent” as follows:
“The principle that children should be treated equally regardless of descent was one of the two guiding principles underlying the 3 January 1972 Act. At the time, a compromise had to be made, however, and full equality was not achieved. Today, it appears essential to complete the exercise and achieve full equal treatment of children regardless of descent. In order to attain that objective, full equality of status needs to be achieved and the right to affiliation made equal so that the possibility of establishing or contesting descent will no longer depend on the parents’ legal status.
SS1. Achieving equality of status
The working group considers, unanimously and unhesitatingly, that the time has come to abolish the legal restrictions on adulterine children’s inheritance rights. The current position is that their rights are halved where they are competing with half- brothers and sisters or with the adulterer’s spouse.
A number of arguments militate strongly in favour of abolition. The first is quite simply chronological. The solutions adopted by the 3 January 1972 Act constituted, according to the most eminent commentators, ‘an inglorious trade-off’, the fruit of a ‘Law of compromise’. That compromise was necessary as a transitional phase during which the principle of equality which the Act had intended to promote could be progressively inserted into our law. Twenty-seven years later, the transitional phase has come to an end. The second argument stems from the case-law of the European Court of Human Rights. It is likely that the Court will soon find that the French rule violates the Convention, and it would be preferable for an amendment of our law not to appear to be imposed from outside. Lastly, and above all, the solution favoured by the group of making the law of descent equal by abolishing divisive classifications makes it more and more difficult to maintain inequalities based on conditions of birth, without inevitably incurring the two-fold complaint of injustice and contradiction.
Is there a danger that the importance of marriage will be lessened by undermining the trust which husbands and wives have placed in each other? The group does not think so. Adultery is clearly a serious injury inflicted on the spouse who is the victim of it and, over and above the spouses, on the children born of their marriage. In more legal terms, adultery is always an instance of misconduct and can be serious misconduct, for the duty of fidelity is inherent in the marital commitment. If such misconduct must be punished, however, it is only those who have committed it who should be punished and certainly not, we feel, the child born as a result. It is contradictory to declare on the one hand that parents have equal responsibility for their children irrespective of how they choose to lead their life as a couple and, on the other hand, to impose on a child, on the grounds that he or she is adulterine, the consequences of the parent’s infidelity.
More specifically, to enforce marital duties through inheritance rights appears to be neither fair nor appropriate. For one thing, relations between husband and wife will often have been broken off well before the birth of the child, and there is therefore something hypocritical about imposing on that child the ties of a commitment from which those who entered into it have long since freed themselves. For another thing, even if the marital ties have remained intact until the end, is it not vain to hope that a hereditary advantage will succeed in healing a split which by its very nature belongs to a completely different realm? Moreover, as the law currently stands, it is almost always possible for the child’s parent to ‘erase’ this reduction in rights by legitimising – after divorcing and re-marrying, or, without divorcing, by seeking a court order – or even adopting the child. Far from making the rule more easily bearable, that option has the effect of leaving the child’s ultimate destiny to the discretion of the adulterous parent. Thus the current provisions have the effect of multiplying inequalities, without succeeding in strongly affirming the importance of the marital commitment.
We add that we are not in favour of an intermediate solution whereby the current protection afforded by law to children born in wedlock (particularly Articles 760 and 915) would be abolished, while the protection afforded to the wronged spouse, the direct victim of the adultery, under Articles 759 and 767, second paragraph, would be maintained. The effect of that solution would be minimum compliance with the international conventions, whose sole concern is to secure equality between children, whereas the protective provisions specific to the spouse apply, by definition, only where the deceased leaves no other issue. Such a hybrid solution would merely be a means of failing to resolve the debate. What is actually at issue is not only material equality between children born of different partnerships in the division of their common parent’s estate, but, in both more abstract and stronger terms, equality of the rights conferred by descent.
Proposal:
– Abolish the restrictions on adulterine children’s inheritance rights.”
VIOLATED_ARTICLES: 14
P1
VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-81996
LANGUAGEISOCODE: ENG
RESPONDENT: GEO
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF FC MRETEBI v. GEORGIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Costs and expenses (domestic proceedings) - claim dismissed
TEXT: 5. The applicant club was founded on 3 February 1988 in Tbilisi. Subsequent to the last changes in its corporate structure, on 10 February 1999, the Vake District Court in Tbilisi incorporated the applicant as a branch of a German limited liability company, “BAUML GmbH”.
6. Under contracts of 11 May and 5 December 1990, the applicant engaged Mr Giorgi Kinkladze (“the footballer”) as a professional player until 30 June 1993.
7. On 11 July 1992 the applicant and the football club Dinamo FC, both members of the Georgian Football Federation (“the GFF”), entered into an agreement on the footballer's transfer to Dinamo FC. It was arranged that the footballer would play for the new club after the latter had paid the applicant 1,000,000 Soviet roubles (the equivalent of 6,000 euros (EUR), according to the applicant). In addition, if the footballer was later transferred abroad, the applicant was to receive 50% of the international transfer fee owed to Dinamo FC. If Dinamo failed to fulfil that obligation, the agreement between it and the footballer would become null and void.
8. On 13 August 1992 Dinamo FC paid the applicant the sum agreed in roubles and the domestic transfer took effect.
9. Under a contract of 11 July 1995, Dinamo FC transferred the footballer to Manchester City FC for a lump sum of USD 1,750,000 (EUR 1,380,000). In the event of the footballer's further transfer by the English club for a fee in excess of USD 3,000,000 (EUR 2,370,000), Dinamo FC was entitled to receive 10% of the excess amount. Subsequently, Manchester City FC indeed transferred the footballer to AFC Ajax, and Dinamo FC thus received around GBP 1,250,000 (EUR 1,820,000) from the English club.
10. Having received the lump-sum transfer fee from Manchester City FC, Dinamo FC never remitted to the applicant the percentage agreed under the contract of 11 July 1992. Seeking to obtain the amount owed to it, the applicant complained to the GFF.
11. On 2 January 1997 the Disputes Committee of the GFF decided that Dinamo FC owed the applicant USD 875,000 (EUR 691,000), corresponding to one half of the transfer fee paid by Manchester City FC. Dinamo FC was ordered to pay this sum in three instalments.
12. On 14 April 1997 the applicant referred the matter to the Fédération Internationale de Football Association (the “FIFA”) requesting its intervention to secure enforcement by the GFF of its decision of 2 January 1997.
13. The FIFA reminded the GFF on 28 April, 12 June, 29 July and 28 August 1997 of its obligation to enforce decisions and thus to settle the dispute between the Georgian clubs, warning that non-compliance with FIFA directives might result in disciplinary proceedings against the GFF.
14. On 1 September 1997 the GFF Emergency Committee decided that Dinamo FC was liable to pay the total amount of USD 875,000 (EUR 691,000) to the applicant immediately and that, in case of failure to comply with this decision, Dinamo FC would be relegated to the Second Division of the Georgian Championship. That sanction would not, however, release the debtor from its obligation to fulfil its financial commitments visà-vis the applicant. In addition, the GFF warned both clubs that they were barred, under the GFF and FIFA Statutes, from referring the dispute to a court of law.
15. Following the applicant's complaints, on 16 April and 6 June 1998, that the dispute had still not been settled, the FIFA again notified the GFF, requesting the enforcement of the latter's decisions at the latest by 31 August 1998, on pain of international sanctions.
16. In the meantime Dinamo FC had taken the matter to a civil court. In a judgment of 13 July 1998, the Vake-Saburtalo District Court in Tbilisi declared the transfer agreement signed by both parties on 11 July 1992 to be null and void. Subsequently, the decision of the Disputes Committee of the GFF of 2 January 1997 was also annulled. During the hearing, the applicant pointed out that the District Court had no right to examine the issue, since the clubs, as GFF members, enjoyed immunity from the jurisdiction of the ordinary courts. That argument was left unanswered. The judgment, not having been appealed, became binding.
17. On 17 September 1998, in view of that judgment, the GFF decided to annul its decision of 1 September 1997 and thus to terminate the dispute.
18. On 24 August 1999 the applicant appealed to the Bureau of the FIFA Players' Status Committee (“the Bureau”), a disputes resolution organ. In a decision of 6 September 1999, the Bureau considered that the FIFA should intervene since it was clear that one of the parties “was not behaving properly and that the GFF was not able to settle the matter by itself”.
19. Without challenging the findings of the Vake-Saburtalo District Court in Tbilisi on 13 July 1998 about the nullity of the contract of 11 July 1992, the Bureau stated on 6 September 1999 that the footballer's transfer from the applicant to Dinamo FC had nevertheless taken place and that no compensation had been paid in return. It therefore concluded that:
“There had been a transfer of possession of the federative rights to the player between two clubs, without any contract binding them (since the transfer contract had been declared null and void by the court) and, since one of the parties had indeed performed its obligation, it was logical for that party to be properly indemnified for having done so in good faith.”
20. In the light of its findings, the Bureau decided that compensation for the training and development of the footballer had to be paid to the applicant; both clubs were instructed to negotiate the amount. In the event of further disagreement, the FIFA Special Committee would resolve the issue for them. Furthermore, noting that Dinamo FC had severely breached Article 59 § 1 of the FIFA Statutes by submitting the dispute to a court of law, the Bureau fined that club CHF 20,000 (EUR 12,824).
21. The applicant lodged an appeal against this decision with the FIFA Executive Committee (“the Executive Committee”), which delivered its final decision on 24 March 2000. The appeal having been lodged out of time, the Executive Committee rejected it. However, in view of the fact that the clubs had failed to negotiate an amount of compensation, it determined that Dinamo FC had to pay the applicant USD 300,000 (EUR 236,000).
22. Dinamo FC complied with this decision and fully paid the debt in January 2001.
23. Considering that the amount fixed by the FIFA was insufficient to compensate for the loss sustained, the applicant brought an action for damages in the amounts of USD 9,600,000 and GBP 2,812,500 (totalling EUR 11,750,000) against the GFF before a court of law. It argued that the respondent, contrary to its Statutes, had failed to abide by its positive obligation to protect the rights of its member clubs. As a result of this negligence, the unjust enrichment of Dinamo FC had occurred at the expense of the applicant's property rights.
24. The applicant also requested leave to defer payment of the court fees (known as State fees) until after examination of the case. On 11 April 2003 the Tbilisi Regional Court refused to defer payment on the ground that the applicant's request was not substantiated by evidence of insolvency. The value of its claim being high, the applicant eventually paid the court fees, in the maximum amount of GEL 5,000 (EUR 2,200) under Article 39 §§ 1 and 2 of the Code of Civil Procedure (“the CCP”), on 5 May 2003.
25. The Tbilisi Regional Court, as the court of first instance, examined the action on 13 November 2003 and dismissed it as manifestly ill-founded.
26. On 5 January 2004 the applicant lodged a cassation appeal with the Supreme Court of Georgia. Referring to the fact that it had suspended its activities because of financial problems (near bankruptcy) caused by the respondent's wrongful acts, the applicant requested exemption from the court fees for cassation proceedings. In case this motion for total exemption was rejected, the applicant also requested leave to pay the court fees either in a reduced amount or with deferment. It referred to the right of access to a court guaranteed by the Constitution.
27. On 30 January 2004 the Supreme Court refused to grant the applicant's request for partial or full exemption from the court fees. Without referring to any specific circumstances, it bluntly stated that no ground for exemption, under Articles 46 to 49 of the CCP, existed in the case at hand. The court invited the applicant to pay the GEL 5,000 fee within fourteen days. When it failed to do so, the Supreme Court, in a final decision of 15 March 2004, declared the cassation claim inadmissible. This decision, adopted under the written procedure, was communicated to the applicant on 26 April 2004.
28. According to the applicant, its inability to receive from Dinamo FC proper indemnification in return for the footballer's transfer, as well as the high costs which it had incurred in the domestic and international proceedings against Dinamo FC and the GFF, constituted the main reasons for its financial collapse. The auditor's report of 15 March 2005 confirmed the applicant's insolvency and the resulting cessation of its activities in the sphere of football. The report stated that, due to the inability to pay the participation fee, the applicant had been excluded from the national football championship since 2002. Among other outstanding debts, the report noted arrears of interest on a loan which the applicant had obtained in order to pay the court fee of GEL 5,000 for the proceedings before the Regional Court (paragraph 24 above).
“...the Regional Court shall hear a case at first instance if the value of the claim exceeds GEL 500,000 [EUR 224,000] ...”
“Court fees (sasamarTlo xarjebi) shall be composed of the State fee (saxelmwifo baJi) and the costs incurred for purposes of the proceedings.”
“The State fee shall be payable in accordance with the State Fees Act when:
a) Lodging a claim...; ...
f) Lodging an appeal;
g) Lodging a cassation appeal...”
“The amount of the State fee shall depend on the value of the claim and is calculated as follows:
a) [For lodging a claim, the State fee] ... shall represent 2.5% of the value of the claim;
b) For lodging an appeal – 3% of the value of the claim;
c) For lodging a cassation appeal – 4% of the value of the claim...;
The amount of the State fee shall not however exceed 5,000 Georgian laris.”
“The value of the claim shall be indicated by the claimant. If the amount specified by the claimant is manifestly incompatible with the actual value of the disputed property, it shall be re-assessed by the judge.”
“The value of a pecuniary claim shall be calculated as follows:
a) For claims of monetary arrears, it shall be represented by the amount claimed...”
“With due regard to the financial situation of the party concerned, the court can exempt that party in whole or in part from the court fees to be paid in favour of the State budget.”
“With due regard to the financial situation of the parties, the court may grant both or one of the parties the right to pay court fees either by instalment, or to defer payment, or to pay a reduced amount.”
“Court fees shall be reduced by one half: ...
c) if the judgment is delivered by default.”
Pursuant to Article 102 § 1, the claimant and respondent are each expected to prove the circumstances on which they base their arguments in the adversarial proceedings.
Pursuant to Articles 185 and 396 § 3, if the State fee is not paid when the cassation appeal is lodged, the court would order the party concerned to pay it within a fixed time limit. If the party does not comply with the deadline, the claim would not be examined and the proceedings would be discontinued.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-57609
LANGUAGEISOCODE: ENG
RESPONDENT: CHE
BRANCH: CHAMBER
DATE: 1983
DOCNAME: CASE OF ZIMMERMANN AND STEINER v. SWITZERLAND
IMPORTANCE: 2
CONCLUSION: Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
TEXT: 6. Mr. Werner Zimmermann and Mr. Johann Steiner were born in 1937 and 1904 respectively. Mr. Zimmermann is a fitter and resides at Uster (Zürich); Mr. Steiner is retired and resides at Bargen (Berne).
Until 30 September 1976, each of the applicants was the tenant of a flat, Mr. Zimmermann in Kloten and Mr. Steiner in Rümlang; these localities are close to Zürich-Kloten airport, which is in the territory of, and operated by, the Canton of Zürich.
7. In 1974, the applicants sought compensation from the Canton of Zürich for the damage caused by the noise and air pollution resulting from the operation of the airport; Mr. Zimmermann claimed a lump sum of 28,242 SF and Mr. Steiner a lump sum of 54,199 SF. Having been unable to arrive at a settlement with them, the Canton applied on 17 June 1974 for assessment proceedings to be opened under section 57 of the Federal Expropriation Act of 20 June 1930. The case was referred to the Federal Assessment Commission having jurisdiction in the matter, namely the Commission for the Tenth District; on this occasion it was presided over by a judge of the St. Gallen Higher Court and also comprised an architect, an engineer and the registrar of that court (sections 59 et seq. of the above-mentioned Act, Order of 24 April 1972 on the Federal Assessment Commissions and Order of 17 May 1972 on the Federal Assessment Districts).
8. The Assessment Commission rejected the applicants’ claims by a decision of 6 October 1976, which was served on them on 7 March 1977. It recognised that under Swiss case-law and legal theory tenants could in principle rely on the law of nuisance (voisinage) set out in the Civil Code (Articles 679 and 684); however, it considered that the applicants were alleging non-pecuniary damage and not damage to property, whereas only the latter fell to be taken into account under the Federal Expropriation Act.
9. On 18 April 1977, Mr. Zimmermann and Mr. Steiner lodged with the Federal Court an administrative-law appeal against the Federal Assessment Commission’s decision (section 77 § 1 of the Federal Expropriation Act). The Federal Court sought the views of the Assessment Commission on 27 April. The latter filed its observations on 18 May 1977 and the administrative authorities of the Canton of Zürich filed theirs on 24 May 1977. This concluded the pleadings (procédure contradictoire).
10. The applicants’ lawyer wrote to the Federal Court on 8 September 1978 to enquire about the state of the proceedings. It replied, on 21 September, that it had not yet been able to deal with the case because of its excessive workload, but hoped to be able to give a decision during the coming months. The Federal Court enclosed with its letter a copy of the observations filed by the Canton of Zürich.
The applicants reverted to the matter on 15 March 1979. In a letter of 23 March, the judge acting as rapporteur of the First Public-Law Chamber of the Federal Court informed them that, save for unforeseen circumstances, a decision would be given before the court vacation.
On 29 June 1980, the applicants’ lawyer again asked the Federal Court for information about the state of the proceedings. On 11 July, the judge acting as rapporteur, whilst expressing his regrets about the delay in examining the case, replied that judgment would be delivered after the court vacation.
11. The First Public-Law Chamber of the Federal Court dismissed the appeal on 15 October 1980.
Its judgment, which was fifteen pages in length, began by analysing the situation of residential and agricultural tenants in the event of expropriation. It went on to observe that when - in 1967 and 1958 respectively - the applicants signed their leases, which were renewable every three months, they were aware of the nuisance to which they would be subjected; they had not established that it had grown noticeably worse in the meantime (section 41 of the Expropriation Act).
12. According to the statistics supplied by the Government, from 1969 to 1979 the total number of appeals rose from 1,629 to 3,037, that is an increase of 86%. The rate of growth was 107% for public-law appeals (1,336 against 634) and as much as 318% for administrative-law appeals (590 against 141).
As early as 1970, the Federal Assembly decided to increase the number of members of the Federal Court from 26 to 28 and the number of substitute judges from 12 to 15; thereafter the Public-Law and Administrative-Law Chamber had 11 members instead of 9.
In its report for 1971, published on 1 February 1972, the Federal Court drew attention to a build-up in the volume of litigation; it stated that "despite the increase, in 1970, in the number of judges", it would "already have to consider at an early date the measures to be taken to deal with the growth in the quantity of cases".
In November 1973, the Federal Court submitted to the Federal Government a number of urgent proposals designed to reduce this excessive workload; at the same time it suggested that a thorough review be undertaken of the whole organisation of the Federal courts, especially in public- and administrative-law matters, as regards its objectives and its relationship with the administration of the Cantonal courts.
In its message of 22 May 1974 to the Federal Assembly, the Federal Government put forward draft texts designed, on the one hand, to modify the Federal Constitution of the Courts Act as regards the Public-Law and Administrative-Law Chamber of the Federal Court and, on the other hand, to amend the Federal Decree fixing the number of registrars and secretaries; it proposed that the number of judges be increased from 28 to 30 and the number of registrars and secretaries from 24 to 28. In its preliminary observations, the Federal Government stated:
"The cases coming before the Public-Law and Administrative-Law Chamber of the Federal Court constitute a task which, for a long time now, has been growing continuously and threatening to become an excessive workload of a permanent nature; in the long term and having regard to the Court’s present organisation, it will not be possible to keep abreast of this task without there being detrimental effects on the quality of the handling of cases and, at the end of the day, on protection under the law."
However, the Federal Court itself requested that these reforms be deferred, pending a full-scale revision of the Federal Constitution of the Courts Act; this revision has not yet been effected (see paragraph 16 below).
13. In its report for 1977, dated 14 February 1978, the Federal Court recorded that there had been no diminution in the growth of its caseload, above all in the area of public and administrative law. It attributed this not only to the extension of the Confederation’s powers in administrative matters but also to the fact that citizens were having increased resort to the guarantees which the law afforded to them vis-à-vis the public authorities.
On 14 December 1977, the Federal Court had recommended to the Federal Government urgent measures similar to those it had sought in 1973. As a result, in 1978 the Federal Assembly took a first series of decisions. It increased the number of Federal judges from 28 to 30 and, with effect from 1 February 1979, the number of registrars and secretaries from 24 to 28. It also decided to split the Public-Law and Administrative-Law Chamber into two Public-Law Chambers.
The Federal Court, for its part, adopted on 14 December 1978 revised Rules of Procedure which also came into force on 1 February 1979. Public-law and administrative-law cases are now distributed, according to their subject-matter, amongst the different Divisions of the Federal Court.
14. These reforms were to prove insufficient. In its management report for 1979, dated 12 February 1980, the Federal Court recorded that 3,037 cases had been brought and 2,786 disposed of during the year; however, it had been necessary to carry over to 1980 the examination of some 1,565 cases that is more than half of those registered in 1979. The Federal Court observed that the vast majority (84%) of the cases remaining on its list concerned public and administrative law and stated:
"In these areas, if no immediate solution is found, a litigant will in future have to wait for years before the Court rules on his case. In a State governed by the rule of law, such a situation is incompatible with the role that should be played by the Supreme Court."
The Federal Government therefore proposed in their message of 17 September 1980 to the Federal Assembly that the number of registrars and secretaries be increased from 28 to 60. It should be noted that these are not junior administrative staff but highly-qualified lawyers who play an essential role in the functioning of the Federal Court (Rule 10 of the Federal Court’s Rules of Procedure, dated 14 December 1978); indeed they act in a consultative capacity during deliberations (Rule 12, second paragraph).
15. In its management report for 1980, dated 6 February 1981, the Federal Court pointed out that the situation was still serious. It regretted that the two legislative Chambers had not yet been able to adopt the Government’s proposals and added:
"Owing to its overwhelming workload, the Court is now no longer able, in certain areas, to fulfil its role as guardian of the law, even though for its part it is doing everything possible, as regards internal organisation, to keep abreast of its obligations."
On 20 March 1981, the Federal Assembly adopted a Decree raising from 28 to 40 the posts for registrars and secretaries of the Federal Court and also increasing its administrative staff.
These measures led to some improvement: in its report for 1981, dated 12 February 1982, the Federal Court noted that for the first time since 1975 it had succeeded in disposing of almost as many cases (3,164) as had been registered (3,187); however, it had been obliged to adjourn 1,787. It concluded from this that "for some years more it will remain burdened by an excessive workload and will therefore not be able to decide cases within a time which would, having regard to their nature, appear reasonable in terms of the Constitution and the Convention".
16. Quite apart from these decisions intended to cater for the immediate problem, the Federal committee of experts preparing a full-scale revision of the Federal Constitution of the Courts Act of 16 December 1943, designed to reduce the Federal Court’s workload and accelerate its proceedings, completed its work at the end of 1981. Recently, the Federal Office of Justice and Police submitted a preliminary draft text to the Government, with a view to setting in motion a consultation procedure which should be terminated in 1983.
17. The Federal Court has itself taken practical steps aimed at coping with its backlog of pending business. Believing that to process cases in chronological order would give rise to serious injustices, it has, in particular, utilised a system, known as "sorting", based on the degree of urgency and the human implications of each case.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-58006
LANGUAGEISOCODE: ENG
RESPONDENT: GRC
BRANCH: CHAMBER
DATE: 1996
DOCNAME: CASE OF EFSTRATIOU v. GREECE
IMPORTANCE: 2
CONCLUSION: No violation of Art. 3;No violation of Art. 9;No violation of P1-2;Violation of Art. 13+P1-2;Violation of Art. 13+9;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
JUDGES: John Freeland;N. Valticos
TEXT: 7. The three applicants are Jehovah’s Witnesses. Petros and Anastassia Efstratiou are the parents of Sophia, who was born in 1978 and is currently a pupil in the last three years of State secondary education at a school at Komotini.
According to them, pacifism is a fundamental tenet of their religion and forbids any conduct or practice associated with war or violence, even indirectly. It is for this reason that Jehovah’s Witnesses refuse to carry out their military service or to take part in any events with military overtones.
8. At the start of the school year 1993/94 Mr and Mrs Efstratiou submitted a written declaration in order that their daughter Sophia, then 14, should be exempted from attending school religious-education lessons, Orthodox Mass and any other event that was contrary to her religious beliefs, including national-holiday celebrations and public processions.
9. Sophia was exempted from attendance at religious-education lessons and Orthodox Mass.
In October 1993, however, she, in common with the other pupils at her school, was asked to take part in the celebration of the National Day on 28 October, when the outbreak of war between Greece and Fascist Italy on 28 October 1940 is commemorated with school and military parades.
On this occasion school parades take place in nearly all towns and villages. In the capital there is no military parade on 28 October, and in Salonika the school parade is held on a different day from the military parade. The school and military parades are only held simultaneously in a small number of municipalities.
Sophia refused to parade on account of her religious beliefs.
10. On 1 November 1993 the teachers’ committee at her school punished her for her failure to attend with two days’ suspension from school. That decision was taken in accordance with Circular no. C1/1/1 of 2 January 1990 issued by the Ministry of Education and Religious Affairs (see paragraph 14 below).
11. On 11 November 1994 Sophia was again punished with suspension, for one day, on the ground that she had not taken part in the school parade held on 28 October 1994.
12. The 1975 Constitution contains the following provisions:
"1. The dominant religion in Greece is that of the Christian Eastern Orthodox Church. The Greek Orthodox Church, which recognises as its head Our Lord Jesus Christ, is indissolubly united, doctrinally, with the Great Church of Constantinople and with any other Christian Church in communion with it [omodoxi], immutably observing, like the other Churches, the holy apostolic and synodical canons and the holy traditions. It is autocephalous and is administered by the Holy Synod, composed of all the bishops in office, and by the standing Holy Synod, which is an emanation of it constituted as laid down in the Charter of the Church and in accordance with the provisions of the Patriarchal Tome of 29 June 1850 and the Synodical Act of 4 September 1928.
2. The ecclesiastical regime in certain regions of the State shall not be deemed contrary to the provisions of the foregoing paragraph.
3. The text of the Holy Scriptures is unalterable. No official translation into any other form of language may be made without the prior consent of the autocephalous Greek Church and the Great Christian Church at Constantinople."
"1. Freedom of conscience in religious matters is inviolable. The enjoyment of personal and political rights shall not depend on an individual’s religious beliefs.
2. There shall be freedom to practise any known religion; individuals shall be free to perform their rites of worship without hindrance and under the protection of the law. The performance of rites of worship must not prejudice public order or public morals. Proselytism is prohibited.
3. The ministers of all known religions shall be subject to the same supervision by the State and to the same obligations to it as those of the dominant religion.
4. No one may be exempted from discharging his obligations to the State or refuse to comply with the law by reason of his religious convictions.
5. No oath may be required other than under a law which also determines the form of it."
13. A royal decree of 23 July 1833 entitled "Proclamation of the Independence of the Greek Church" described the Orthodox Church as "autocephalous". Greece’s successive Constitutions have referred to the Church as being "dominant". According to Greek conceptions, the Orthodox Church represents de jure and de facto the religion of the State itself, a good number of whose administrative and educational functions (marriage and family law, compulsory religious instruction, oaths sworn by members of the Government, etc.) it moreover carries out. Its role in public life is reflected by, among other things, the presence of the Minister of Education and Religious Affairs at the sessions of the Church hierarchy at which the Archbishop of Athens is elected and by the participation of the Church authorities in all official State events; the President of the Republic takes his oath of office according to Orthodox ritual (Article 33 para. 2 of the Constitution); and the official calendar follows that of the Christian Eastern Orthodox Church.
14. Circular no. C1/1/1 of 2 January 1990 issued by the Ministry of Education and Religious Affairs provides:
"Schoolchildren who are Jehovah’s Witnesses shall be exempted from attending religious-education lessons, school prayers and Mass.
...
In order for a schoolchild to benefit from this exemption, both parents (or, in the case of divorced parents, the parent in whom parental authority has been vested by court order, or the person having custody of the child) shall lodge a written declaration to the effect that they and their child (or the child of whom they have custody) are Jehovah’s Witnesses.
...
No schoolchild shall be exempted from taking part in other school activities, such as national events."
15. The relevant Articles of Presidential Decree no. 104/1979 of 29 January and 7 February 1979 are the following:
"1. The behaviour of pupils inside and outside the school shall constitute their conduct, irrespective of the manner - by act or by omission - in which they express it.
Pupils shall be required to conduct themselves suitably, that is to say in accordance with the rules governing school life and the moral principles governing the social context in which they live, and any act or omission in contravention of the rules and principles in question shall be dealt with according to the procedures provided in the educational system and may, if necessary, give rise to the disciplinary measures provided in this decree."
The disciplinary measures laid down in Article 27 of the same decree are, in increasing order of severity, a warning, a reprimand, exclusion from lessons for an hour, suspension from school for up to five days and transfer to another school.
"Suspended pupils may remain at school during teaching hours and take part in various activities, under the responsibility of the headmaster."
16. Article 10 of the Constitution provides:
"Any person, or persons acting jointly, shall be entitled, subject to compliance with the laws of the State, to submit written petitions to the authorities. The latter shall be required to act as quickly as possible in accordance with the provisions in force and to give the petitioner a reasoned written reply in accordance with the statutory provisions."
Article 4 of Legislative Decree no. 796/1971 provides:
"Once the authorities have received the petition [provided for in Article 10 of the Constitution], they must reply in writing and give the petitioner all necessary explanations, within the time deemed absolutely necessary, which shall not exceed thirty days from service of the petition."
17. Article 95 of the Constitution is worded as follows:
"The following shall in principle lie within the jurisdiction of the Supreme Administrative Court:
(a) the setting aside, on application, of enforceable acts of the administrative authorities for misuse of authority or error of law.
..."
According to the settled case-law of the Supreme Administrative Court, "decisions of school authorities to impose on pupils the penalties provided in Article 27 of Presidential Decree no. 104/1979 are intended to maintain the necessary discipline within schools and contribute to their smooth running; they are internal measures which cannot be enforced through the courts, and no application lies to have them set aside by the courts" (judgments nos. 1820/1989, 1821/1989 and 1651/1990). Only transfer to another school has been held to be enforceable and amenable to being quashed by the Supreme Administrative Court (judgment no. 1821/1989).
18. Section 105 of the Introductory Law to the Civil Code provides:
"The State shall be under a duty to make good any damage caused by the unlawful acts or omissions of its organs in the exercise of public authority, except where the unlawful act or omission is intended to serve the public interest. The person responsible shall be jointly and severally liable, without prejudice to the special provisions on ministerial responsibility."
This section establishes the concept of a special prejudicial act in public law, creating State liability in tort. This liability results from unlawful acts or omissions. The acts concerned may be not only legal acts but also physical acts by the administrative authorities, including acts which are not in principle enforceable through the courts (Kyriakopoulos, Interpretation of the Civil Code, section 105 of the Introductory Law to the Civil Code, no. 23; Filios, Contract, Special Part, volume 6, Tort, 1977, para. 48 B 112; E. Spiliotopoulos, Administrative Law, 3rd edition, para. 217; Court of Cassation judgment no. 535/1971, Nomiko Vima, 19th year, p. 1414; Court of Cassation judgment no. 492/1967, Nomiko Vima, 16th year, p. 75).
The admissibility of an action for damages is subject to one condition, namely the unlawfulness of the act or omission.
Article 57 of the Civil Code ("Personal rights") provides:
"Any person whose personal rights are unlawfully infringed shall be entitled to bring proceedings to enforce cessation of the infringement and restraint of any future infringement. Where the personal rights infringed are those of a deceased person, the right to bring proceedings shall be vested in his spouse, descendants, ascendants, brothers, sisters and testamentary beneficiaries. In addition, claims for damages in accordance with the provisions relating to unlawful acts shall not be excluded."
VIOLATED_ARTICLES: 13
9
P1
VIOLATED_PARAGRAPHS: P1-2
NON_VIOLATED_ARTICLES: 3
9


ITEMID: 001-67745
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF BUSUIOC v. MOLDOVA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 10 with regard to certain statements;No violation of Art. 10 with regard to other statements;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 7. The applicant was born in 1956 and lives in Chişinău, Moldova. He is a journalist.
8. On 14 August 1998 the Russian language weekly newspaper “Express” published an article entitled “The minor affairs of the big Airport”, signed by the applicant. He gave as sources for his article the outcome of an investigation conducted by him and the materials of a Parliamentary Commission concerning the selling of aircraft. The article stated, inter alia, that:
“The scandal of the sale of Moldovan aircraft at dumping prices attracted the public attention of Moldovan society, which is already used to being unsurprised by such events. However, these still ongoing events offered our newspaper the opportunity to focus on this topic (see, 'Express' No. 19 and 20 of 19 and 26 June 1998). This article is an attempt to give a meaning to the events, which happened within the State Administration of Civil Aviation ('SACA') in the last two years, on the basis of facts which became known as a result of a press investigation.
In 1995 Chişinău International Airport ('CIA') split from the State Air Company 'Air Moldova' and became an independent enterprise. The Head of SACA was L.P., while A.I. was appointed as Head of CIA. An agreement was signed between SACA and A.I. for a period of three years. In 1996 the above agreement was cancelled on the grounds of the negligence of A.I. in carrying out his duties. This fact was the starting point of the story which follows.
A.I. disagreed with SACA's decision on his dismissal and lodged a court action seeking his reinstatement. Since court proceedings in Moldova are so lengthy, A.I., who could not accept his dismissal, took steps to approach CIA's staff. To this end, he organised with the support of his adherents a demonstration on the old Airport square. A.I. took the floor and the core of his speech was that he was the only person who, as head of CIA, could ensure its economic growth.
SACA also decided to seek the opinion of its staff and for this purpose, its Director General, L.P., summoned a meeting of his deputies and the Airport units' heads. Everyone expressed a view and the common opinion was that A.I. was not the right person to be the head of CIA. Hence, the meeting of the Airport administration clearly expressed its distrust of A.I.
Nevertheless, such an outcome did not discourage the pretender to the chairmanship. He even issued a leaflet entitled 'Appeal to the Airport staff', which stated: 1. SACA unfairly dismissed A.I.; 2. A.I. will inevitably become CIA's Chief Executive.
This proved to be true, when the court declared SACA's actions to be illegal and ordered the reinstatement of A.I. in his previous post. ...”
9. The following related to the events that took place after A.I.'s reinstatement:
“...The purging and transfer of staff marked the reinstatement of A.I. in the position. Many were reminded of their disapproval of the candidature of A.I. for the position of Chief Executive of CIA, expressed at the meeting with directors and managers. ... Once he had become Chief Executive of the Chişinău Airport for the second time and after he had successfully accomplished the first staff purge by means of the reorganisation of the enterprise's structure, A.I. called up his 'team', which had been created in between his two directorships. ... the present Director General L.I., devoted to the policy chosen by his patron A.I. ...
...One can become convinced about this by the example of another worker promoted by A.I. It is I.V. Not long ago, I.V. was working somewhere in the system of road transport and knew no more about planes than an ordinary person knows, and perhaps what he had been told by his relative A.I. But, probably, I.V. had shown a special interest in airport matters and the idea to hire him at the Airport came to his influential relative. To this end, he did not even hesitate to invent a new position – Deputy Director of Handling. ...
...Later, A.I. dismissed them from their positions... Instead of them he appointed (a) K.V. (who some time ago had graduated the Odessa Institute of Communications), (b) S.I. (a graduate of the Kiev Institute of Food Industry).
...Frankly speaking, C.P. himself is not a great expert in landing planes...
...One of the most colourful figures of A.I.'s conscription became the head of the Staff Unit of the Airport, C.M. Indeed, his position can be characterised as follows: the head of the Airport's Staff Unit would puzzle even an employee of the Staff Unit of any penitentiary. Here are some extracts from reports made by Airport employees:
'I bring to your attention that on many occasions the head of the staff unit came to the Security Service and asked for a car... to take him home. Usually he was drunk.'
...
'I was silent for a long time about the sexual harassment I was exposed to from the head of the Staff Unit, until recently when he came to my office and invited me to his summer cottage. I refused but he started to touch me. I struggled free of his hands and threatened to hit him with a telephone if he would not stop.... Once, when I entered C.M.'s office for work-related purposes, he closed the door and asked me to show him my breasts.'
...
... it is probably unnecessary to describe every detail of the adventures of this unrestrained civil servant (распоясавшегося функционера)...
...The saying that everything is possible (не боги горшки обжигают) is borne out by another example, namely the former veterinary doctor, but currently the Manager of the Services' Purchase Unit, C.V...
...A.I. has appointed S.I. (a graduate of the Kiev Institute of Food Industry)....
However, now public opinion in Moldova is focused, as we already stated, on the shady deal of the sale of aircraft. The shady deal, behind which, in the opinion of many civil aviation employees, were A.I. and S.I.”
10. On an unspecified date in 1998 six employees of CIA - I.V., C.P., C.M., C.V., S.I. and A.I. (hereinafter: “the complainants”) - lodged separate civil actions for defamation against the applicant and the publishing office of the newspaper with the Centru District Court. Relying on Articles 7 and 7/1 of the Civil Code, the complainants alleged that the article contained statements which were defamatory of them. On 5 September 1998 the Centru District Court decided to join all six actions.
11. On 3 December 1998 the Centru District Court found that the information contained in the article was defamatory of each of the complainants and did not correspond to reality in respect of I.V, C.V., S.I. and A.I. In the same decision, the complainants were awarded damages to be paid by the applicant and the newspaper.
12. The court found that the following passage was defamatory of I.V. and did not correspond to reality:
“...One can become convinced about this by the example of another worker promoted by A.I. It is I.V. Not long ago, I.V. was working somewhere in the system of road transport and knew no more about planes than an ordinary person knows, and perhaps what he had been told by his relative A.I. But, probably, I.V. had shown a special interest in airport matters and the idea to hire him at the Airport came to his influential relative. To this end, he did not even hesitate to create a new position – Deputy Director of Handling. ...”
13. The court found that I.V. was not a relative of A.I. and that there was no proof that it was A.I. who had invited I.V. to work at the Airport and created a new position for that purpose. The court also found that I.V. had completed technical studies and had graduated from the Academy of Public Administration. The applicant and the newspaper admitted that the information about I.V. being a relative of A.I. was not accurate. The newspaper offered to publish a notice withdrawing it.
14. The court ordered the applicant and the newspaper to pay I.V. damages of 900 Moldovan Lei (MDL) and MDL 1,350 respectively.
15. The court further ruled that the sentence:
“Frankly speaking, C.P. himself is not a great expert in landing planes”
was defamatory of C.P. The court agreed that C.P. had made a rough landing in Budapest once; however, that case could not serve as a basis to question his entire expertise. The court ordered the applicant and the newspaper to pay C.P. damages of MDL 900 and MDL 1,800 respectively.
16. The court quoted in its decision the following two passages as being defamatory of C.M.:
“One of the most colourful figures of A.I.'s conscription became the head of the Staff Unit of the Airport, C.M. Indeed, his position can be characterised as follows: the head of the Airport's Staff Unit would puzzle even an employee of the staff unit of any penitentiary”
and
“it is probably unnecessary to describe every detail of the adventures of this unrestrained civil servant (распоясавшегося функционера).”
17. The applicant explained that the words used to describe C.M. were justified by the latter's conduct (see paragraph 9 above). In this respect the applicant put forward three witnesses. One of them declared that on one occasion C.M. had been drunk and that the witness had written a report to the Chief Executive about that. The other two witnesses were female employees who declared that on several occasions C.M. had sexually harassed them.
18. The court decided not to admit the testimony of the first witness, because no sanction had been applied to C.M. as a consequence of the report. As to the statements of the two female witnesses, the court did not make any assessment of them.
19. The court ordered the applicant and the newspaper to pay the complainant damages of MDL 900 and MDL 1,350 respectively.
20. The court found that the sentence:
“The saying that everything is possible (не боги горшки обжигают) is borne out by another example, namely the former veterinary surgeon, but currently the Manager of the Services Purchase Unit, C.V.”
was defamatory of C.V., and did not correspond to reality.
21. The applicant admitted that a mistake had been made, since C.V. did not graduate from a veterinary school. The court found that C.V. had a diploma from a business school.
22. The court ordered the applicant and the newspaper to pay the complainant damages of MDL 900 and MDL 1,350 respectively.
23. The court found that the phrases:
“A.I. has appointed S.I. (a graduate of the Kiev Institute of Food Industry) ....
... the shady deal, behind which, in the opinion of many civil aviation employees, were A.I. and S.I.”
were defamatory of S.I., and did not correspond to reality.
24. The applicant admitted to having made a mistake as regards the university attended by S.I., the court finding that she had a diploma from a School of Commerce. As to the “shady deal”, the applicant argued that the dubious character of the transaction with State-owned aircraft was evident from an official report of a Parliamentary Commission and that the participation of S.I. in the conclusion of that transaction was not contested by S.I. herself. Relying on statements of A.I. and S.I., the court found that, even though they were involved in the transaction concerning the sale of State-owned aircraft, they were part of a special commission created by the Government for the purpose of the transaction and that they were not the key persons in that transaction. The court ordered the applicant and the newspaper to pay S.I. damages of MDL 900 and MDL 1,800 respectively.
25. The court identified in its decision the following extracts as being defamatory of A.I. and as not corresponding to reality:
“... A.I. [...] organised with the support of his adherents a demonstration on the old Airport square. ... He even issued a leaflet, entitled 'Appeal to the Airport staff'. ... The purging and transfer of staff marked the reinstatement of A.I. in the position. Many were reminded of their disapproval of the candidature of A.I. for the position of Chief Executive of CIA, expressed at the meeting with directors and managers. ... Once he had become Chief Executive of the Chişinău Airport for the second time and after he had successfully accomplished the first staff purge by means of the reorganisation of the enterprise's structure, A.I. called up his 'team', which had been created in between his two directorships. ... the present Director General L.P., devoted to the policy chosen by his patron A.I. ... One can become convinced about this by the example of another worker promoted by A.I. It is I.V. Not long ago, I.V. was working somewhere in the system of road transport and knew no more about planes than an ordinary person knows, and perhaps what he had been told by his relative A.I. But, probably, I.V. had shown a special interest in airport matters and the idea to hire him at the Airport came to his influential relative. To this end, he did not even hesitate to invent a new position – Deputy Director of Handling. ... Later, A.I. dismissed them from their positions... Instead of them he appointed (a) K.V. (who some time ago had graduated the Odessa Institute of Communications), (b) S.I. (a graduate of the Kiev Institute of Food Industry). ... Later on, A.I. dismissed S.I. from the position of Director of the State Air Company 'Air Moldova'.... the shady deal, behind which, in the opinion of many civil aviation employees, were A.I. and S.I.”
26. The applicant put forward a witness who claimed to have heard about a meeting that was held on the Old Airport Square. He also referred to five employees of the Airport who had been dismissed immediately after A.I.'s reinstatement, in support of his statement regarding the alleged staff purge. The court considered that there was no proof that it was A.I. who had organised the meeting on the Old Airport Square or that it was he who later organised a staff purge. The court found that, according to the existing procedures, A.I. did not have the right to employ or to dismiss personnel. Relying on statements of A.I. and S.I., the court also found that even though they had been involved in the sale of State-owned aircraft, they had been part of a special Commission created by the Government for the purpose of the transaction and that they were not the key persons in that transaction.
27. The newspaper submitted that the article had not been intended to defame the complainants and that it was ready to publish a notice correcting the factual mistakes as to I.V. being a relative of A.I. and as to the schools attended by C.V. and S.I.
28. The court ordered the applicant and the newspaper to pay A.I. damages of MDL 1,800 and MDL 3,600 respectively and to publish a notice withdrawing all the statements concerning the complainants found to be defamatory.
29. The applicant and the newspaper lodged an appeal against this judgment with the Chişinău Regional Court. The applicant requested that the decision be quashed, submitting that he had produced sufficient evidence substantiating the accuracy of the statements made in the published article, despite certain minor and accidental factual errors.
30. As regards I.V., the applicant provided copies of the former's employment record, including his previous job at an insurance company specialising in car insurance. The applicant also argued that there was nothing defamatory in the statement that I.V. was a relative of A.I. and that it was true that the position of Deputy Director of Handling had never existed before the employment of I.V.
31. In respect of C.P., the applicant noted that the accuracy of his statements had been substantiated by the written depositions of the complainant himself, which established that he had been involved in a minor aircraft accident in Budapest.
32. As to C.M., the applicant pointed out that the witnesses put forward by him (Airport employees) confirmed the acts of sexual harassment and abuse (see paragraphs 9 and 17 above) by C.M.
33. As to C.V., the applicant admitted having made an error in the job profile and that C.V. was not a veterinary surgeon but had a basic diploma in nursing. The applicant did not consider the description given by him to be defamatory.
34. In so far as S.I. was concerned, the applicant stated that confusion had occurred in respect of the institution she had graduated from. He also submitted that she had indeed worked on the economic aspects of the transaction regarding the sale of State-owned aircraft and that the dubious character of that deal was proved by an official report in an issue of the Official Gazette (“Monitorul Oficial”).
35. As regards A.I., the applicant noted that the accuracy of the allegations had been proved by the depositions of witnesses and by the content of the leaflet attached to the appeal application.
36. On 5 July 1999 the Chişinău Regional Court allowed in part the applicant's appeal and amended the District Court's decision by dismissing the initial action filed by C.P., on the ground that the statement contained in the article about him (see paragraph 15 above) had reflected the truth and had therefore not been of a defamatory nature. The court also reduced the amount of the damages to be paid by the applicant and the newspaper to the complainants. The court justified the reduction by the fact that the circulation of the newspaper “Express” was limited. Accordingly, the applicant and the newspaper were ordered to pay MDL 450 and MDL 1,350 respectively to I.V., MDL 900 and MDL 1,350 respectively to C.M., MDL 180 and MDL 1,350 respectively to C.V., MDL 180 and MDL 1,350 respectively to S.I. and MDL 900 and MDL 1,350 respectively to A.I.
37. The applicant and the newspaper lodged an appeal in cassation with the Court of Appeal, submitting that sufficient supporting evidence had been produced to the first and the second instance courts to prove the truth of the statements made in the impugned article. In particular, the applicant noted that relevant supporting information had been contained in the report of the Parliamentary Comission on the illegal sale of aircraft published in the Official Gazette and that therefore he should be exonerated from any civil responsibility.
38. On 7 September 1999 the Court of Appeal dismissed the appeal in cassation and upheld the decisions of the Regional Court and District Court, stating that the appeal in cassation was unfounded. The court concluded that the impugned article had contained both defamatory statements which did not correspond to reality and statements which were not of a defamatory nature but did not correspond to reality. The court further ruled that the award of damages imposed on the newspaper had not in any way infringed its right to freedom of expression guaranteed by the Constitution and by the Law on the Press.
39. The relevant provisions of the Civil Code in force at the material time read:
Article 7. Protection of honour and dignity
“(1) Any natural or legal person shall be entitled to apply to the courts to seek the withdrawal of statements which are damaging to his or her honour and dignity and do not correspond to reality, as well as statements which are not damaging to honour and dignity, but do not correspond to reality.
(2) When the media body which circulated such statements is not capable of proving that these statements correspond to reality, the court shall compel the publishing office of the media body to publish, not later then 15 days after the entry into force of the judicial decision, a withdrawal of the statements in the same rubric, on the same page or in the same programme or series of broadcasts.”
Article 7/1. Compensation for moral damage
“(1) The moral damage caused to a person as a result of circulation through the mass media or by organisations or persons of statements which do not correspond to reality, as well as statements concerning his or her private or family life without his or her consent, shall be compensated by way of a pecuniary award. The amount of the award shall be determined by the court.
(2) The amount of the award shall be determined by the court in each case as an amount equal to between 75 and 200 minimum wages if the information has been circulated by a legal person and between 10 and 100 if the information has been circulated by a natural person.”
40. The decision of the Parliament of the Republic of Moldova No. 211-XIV of 9 December 1998
Having examined the report of the Investigation Commission on the re-examination of the materials concerning the report of the Auditor's Court and the sale of the State-owned aircraft, which has established numerous serious illegalities committed by public servants from the previous and the present Government, the Parliament adopts the following decision:...
Art. 2. – The Commission shall continue its activity and shall establish the responsibility of the Prime Minister, of the members of the Government and of other persons mentioned in the Report within one month.
Art. 3. – The heads of the institutions mentioned in the Commission's report shall take the appropriate measures for sanctioning the servants responsible for the illegalities and shall communicate the adopted measures to the Parliament.
...
VIOLATED_ARTICLES: 10
NON_VIOLATED_ARTICLES: 10


ITEMID: 001-78849
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF ZOZULYA v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Preliminary objection dismissed (victim);Violation of Art. 6-1;Non pecuniary damage - financial award
JUDGES: Peer Lorenzen
TEXT: 4. The applicant, a Ukrainian national, was born in 1980 and lives in the village of Pryberezhne, the Autonomous Republic of Crimea.
5. In 1998 the applicant was seriously injured due to the fault of his teacher. As a result, he became an invalid.
6. On 3 July 2000 the Saky Town Court (the “Saky Court”) ordered the State College of Audit and Economics of Kharkiv (the “College”), to pay the applicant a lump sum of UAH 32,178.02 and a monthly payment of UAH 519.75 in compensation. On 27 September 2000 the Supreme Court of the Autonomous Republic of Crimea upheld the decision of the first-instance court. The judgment became final and was enforced in full on 6 March 2001.
7. On 6 December 2001 the Supreme Court of Ukraine rejected the appeal lodged against the above decisions under the new cassation procedure. On 5 March 2004 the panel of three judges of the Supreme Court rejected the request of the College for review of the case in the light of newly discovered circumstances.
8. On 28 March 2002 the Saky Court ordered the College to pay the applicant a lump sum of UAH 38,575.35 and a monthly payment of UAH 750.20 in compensation.
9. On 10 May 2002 the Zhovtneviy District Bailiffs' Service of Kharkiv instituted enforcement proceedings.
10. In December 2002 the Bailiffs' Service informed the applicant that the judgment could not be enforced due to the lack of State budgetary allocations in respect of the College's expenditure.
11. On 11 July 2003 the Bailiffs' Service discontinued the enforcement proceedings on the ground that the debtor lacked funds.
12. In April 2004 the applicant received a total of UAH 2,250 in payment of the allowance for three months.
13. On 4 May 2005 the judgment was enforced in full.
14. On 3 June 2003 the Saky Court awarded the applicant UAH 20,757.74 against the College in compensation.
15. On 26 November 2003 the Court of Appeal of the Autonomous Republic of Crimea upheld the decision of the first instance court. The enforcement proceedings commenced in June 2004.
16. On 30 May 2005 the judgment was enforced in full.
17. In 2004 the applicant instituted proceedings in the same court against the College, seeking compensation for his medical, hygienic, and food expenses, and for loss of income. On 19 May 2004 the court endorsed the friendly settlement agreement between the applicant and the College, according to which the latter was to pay the applicant a lump sum of UAH 1,770 and a monthly payment of UAH 1,435 in compensation.
18. On 28 January 2005 the judgment was enforced in full.
19. In January 2003 the applicant lodged a complaint with the Zhovtneviy District Court of Kharkiv (the “Zhovtneviy Court”) against the Bailiffs' Service for failure to enforce the judgment of 28 March 2002. On 4 April 2003 the court rejected the applicant's complaint, finding no fault on the part of the Bailiffs' Service. It held that the judgment could not be enforced due to the lack of State budgetary allocations in respect of the College's expenditure, for which the Bailiffs' Service was not responsible.
20. On 17 June 2003 the Kharkiv Regional Court of Appeal quashed the decision of 4 April 2003 and remitted the case for a fresh consideration.
21. On 3 September 2003 the Zhovtneviy Court found against the applicant on grounds similar to those on which it based its decision of 4 April 2003.
22. On 3 December 2003 the Kharkiv Regional Court of Appeal upheld the decision of 3 September 2003.
23. The applicant's appeal in cassation is still pending before the Supreme Court.
24. The relevant domestic law is summarised in the judgment of Romashov v. Ukraine (no. 67534/01, §§ 16-18 and 39-41, 27 July 2004).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-103927
LANGUAGEISOCODE: ENG
RESPONDENT: ALB
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF CAUSH DRIZA v. ALBANIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 13;Violation of Art. 6-1;Violation of P1-1
JUDGES: Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Sverre Erik Jebens;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 6. The applicant was born in 1943 and lives in Fier, Albania.
7. On 20 May 1947 the authorities confiscated the applicant's father's one-storey villa and the appurtenant plot of land measuring 360 sq. m which was situated in the city of Fier.
8. On 6 June 1953 the authorities transferred the confiscated villa and the plot of land to S.
9. Pursuant to the 1993 Property Act, on an unspecified date the applicant and his nine siblings lodged an application with the Fier Commission on Restitution and Compensation of Properties (“the Commission”) seeking the restitution of their father's property. On 27 October 1993 the Commission dismissed their request.
10. The applicant lodged an appeal with the Lushnjë District Court (“the District Court”) claiming that the Commission's decision was unlawful.
11. On 22 February 2000 the District Court recognised the applicant's and his siblings' inherited property rights over the villa and the plot of land. However, the District Court found that, in so far as the plot of land was occupied and in so far as the one-storey villa had been lawfully transferred to S, they were not recoverable by the applicant and his siblings. It awarded them compensation in the amount of 204,902 Albanian leks (“ALL”).
12. The applicant and his siblings appealed arguing that the District Court had wrongly assessed the evidence.
13. On 30 June 2000 the Vlora Court of Appeal (“Court of Appeal”) awarded the applicant and his siblings compensation in-kind for the value of the plot of land as opposed to monetary compensation. The applicant and his siblings appealed.
14. On 18 June 2001 the Supreme Court dismissed the appeal, finding that it did not contain any of the grounds of appeal envisaged by Article 472 of the Code of Civil Procedure. The applicant and his siblings lodged a constitutional appeal with the Constitutional Court.
15. On 10 June 2002 the Constitutional Court, sitting as a bench of three judges, declared the appeal inadmissible.
16. To date, the Court of Appeal decision has not been enforced.
17. The relevant provisions of the Albanian Constitution read:
Article 42 § 2
“In the protection of his constitutional and legal rights, freedoms and interests, or in the case of a criminal charge brought against him, everyone has the right to a fair and public hearing, within a reasonable time, by an independent and impartial court established by law.”
Article 142 § 3
“State bodies shall comply with judicial decisions.”
Article 131
“The Constitutional Court shall decide: ... (f) Final complaints by individuals alleging a violation of their constitutional rights to a fair hearing, after all legal remedies for the protection of those rights have been exhausted.”
18. The relevant domestic law as regards property restitution and compensation in Albania has been described in the judgments of Gjonbocari and Others v. Albania, no. 10508/02, §§ 36-43, 23 October 2007, Driza v. Albania, no. 33771/02, §§ 36-43, 13 November 2007, Ramadhi and Others v. Albania, no. 38222/02, §§ 23-30, 13 November 2007.
19. New and substantial legislative measures have been enacted amending the principal 2004 Property Act since the adoption of those judgments. The principal amendments are as follows:
20. Section 3 extended until 31 December 2007 the time-limit for the completion of the examination of applications for the recognition, restitution and compensation of immovable properties, with the exception of payment of the amount of compensation, the time-limit for which was fixed for 2015.
21. Section 13 established the Agency for the Restitution and Compensation of Properties (“the central Agency”) which replaced the State Committee on the Restitution and Compensation of Properties (“the State Committee”). The central Agency, which was headed by a Director, had its seat in Tirana and was made up of twelve regional Agency offices.
22. According to section 14, the regional Agency office was responsible for the initial examination of applications for the recognition of property rights, in response to which it decided on the restitution of property and/or compensation in lieu thereof. Section 15 set the time-limit for the submission of applications for the recognition of property rights for 1 October 2007.
23. Section 16 stipulated that an appeal against a decision of the regional Agency office could be lodged with the central Agency. The decision of the central Agency could be appealed against to the Tirana District Court within thirty days of its notification.
24. Section 21 extended until 31 June 2008 the time-limit for the completion of the examination of applications for the recognition, restitution and compensation of immovable properties, with the exception of payment of compensation.
25. Section 22 provided for the establishment of the In-kind Compensation Fund (IkCF) alongside the Financial Compensation Fund (“FCF”). Within sixty days from the Act's entry into force, the Government had to approve the list of properties to be allocated to the IkCF.
26. Section 1 provided that the central Agency was responsible for examining claims for in-kind and financial compensation. The central Agency was also responsible for examining appeals against the decisions of regional Agency offices.
27. Section 2 reiterated that the regional Agency offices continued to be responsible for the initial examination of applications for the recognition of property rights. The claimant or the State Advocate's Office had the right to appeal against that decision within thirty days to the central Agency, which was the highest administrative body. Such an administrative decision was amenable to judicial review in accordance with the provisions of the Code of Civil Procedure.
28. Section 1 extended until 31 December 2008 the time-limit for the submission of applications for the recognition of property rights and the restitution of properties by the regional Agency offices. It also provided for the possibility for a claimant to be given a new time-limit by way of a court decision.
29. According to section 2, the completion of the examination of applications for the recognition of property rights and restitution of properties would be finalised on 30 June 2009, with the exception of the payment of the amount of compensation, the deadline for which was fixed for 2015.
30. Section 3 extended until 31 December 2008 the deadline for the allocation of properties to the IkCF.
31. Section 2 provided that in addition to the budgetary appropriations, the allocations obtained by virtue of this law and other donors, the FCF would also be made up of proceeds obtained through auctions of State properties' which had not been the subject of a Commission decision.
32. Section 6 abolished the regional Agency offices. It stated that the archives of those offices would be transferred to the central Agency. According to section 1, the central Agency would complete the examination of applications for recognition of property rights and restitution of properties lodged with the former regional Agency offices. The central Agency continued to examine appeals lodged with it against former regional Agency offices' decisions.
33. According to section 5, the claimant or the State Advocate's Office had the right to appeal against the central Agency's decision within thirty days of its notification to the Tirana District Court.
34. Section 7 set the deadline for the completion of the examination of applications for the recognition and restitution of properties for 31 December 2011.
35. The 2010 Property Act chiefly introduced the possibility of requesting a revision of decisions of former Commissions / regional Agency offices.
36. Section 4 extended until 31 December 2011 the deadline for the allocation of properties to the IkCF.
37. Pursuant to the Property Act, as amended, the Government have adopted a number of by-laws, by way of Council of Ministers' Decisions (“CMDs”) as described below.
38. Pursuant to Article 23 of the 2004 Property Act which established the Financial Compensation Fund, the Government adopted the above-mentioned decisions between 2005 and 2009 in respect of the award of financial compensation to former owners.
39. In 2005 financial compensation was awarded in respect of compensation claims arising out of the Tirana Commission's decisions. In 2006 financial compensation was awarded in respect of compensation claims arising out of the decisions of the Tirana and Kavaja Commissions. In 2007 the group of beneficiaries was expanded to include former owners who were in possession of a Commission decision issued with respect to cities for which a property valuation map had been approved and issued. In 2008 and 2009 all former owners, who were entitled to compensation, following a Commission / regional Agency's decision, were eligible to apply for financial compensation.
40. According to the CMDs adopted between 2005 and 2008, a claimant was required to lodge a standard application for financial compensation with the central Agency in Tirana, furnishing, inter alia, the Commission / regional Agency's decision that recognised his right to compensation. Only those former owners who had not previously received compensation were entitled to financial compensation from 2005 to 2008. The 2009 CMD provided that a former owner was entitled to financial compensation on the condition that he had not benefited from: a) previous compensation; b) partial restoration/restitution of the property; c) the right to first refusal; d) the implementation of the Act on the Distribution of Land (Law no. 7501 of 19 July 1991).
41. Applications were to be examined in chronological order on the basis of the Commission's / regional Agency's decision date and number. The amount of financial compensation, which was to be calculated on the basis of property valuation maps, was limited to a maximum of 200 sq. m.
42. The lodging of an application entailed the payment of a processing fee. Former owners who had been unsuccessful in their application for financial compensation in a preceding year could re-submit their application in the following year(s) once they had paid the processing fee.
43. None of those decisions provided for the award of compensation to holders' claims arising out of a final, enforceable court decision.
44. By virtue of the above-mentioned decisions, two of which were adopted in 2007 and two in 2008, the Government approved and issued property valuation maps as listed above. The maps included the reference price per square metre throughout the country.
45. The first decision fixed the price of land for the regions of Berat, Gjirokastër, Vlorë and Dibër; the second decision fixed the price of land for the regions of Lezhë, Dibër, Korçë and Kukës; the third decision fixed the price of land for the regions of Fier, Elbasan, Tirana, Vlorë, Durrës and Shkodër. The fourth decision contained an updated price list for certain cities.
46. The 2006 Property Act provided for the establishment of the IkCF (see paragraph 25 above). The Government have adopted the following CMDs on the procedures for the allocation of properties covered by the IkCF.
47. By decision no. 567 of 5 September 2007 the Government lay down the criteria and the procedures for the determination of State properties covered by the IkCF. Section 1 lists the types of properties, for example: a) public immovable property which is located in tourist areas; b) properties of the Ministry of Defence which are not used by the armed forces and have been approved by the President of the Republic; c) available agricultural land belonging to the Ministry of Agriculture; d) forests, pastures and meadows; and e) property of State institutions which falls outside their intended activity.
48. Local and central State institutions are responsible for identifying and drawing up a list of immovable properties in their ownership which could serve as in-kind compensation. The list is submitted to the Agency and its regional offices which are responsible for checking the legal status of each property. The Agency submits the final list of immovable properties for inclusion in the IkCF to the Minister of Justice. The Government are to approve the list and publish it in the Official Journal.
49. By decision no. 868 of 18 June 2008 the Government allocated 17,335 hectares of agricultural land to the IkCF. The Agency is responsible for using it for the compensation of owners in accordance with the criteria prescribed by law.
50. By decision no. 1077 of 18 June 2008 the Government allocated 71,699.3 hectares of forests and pastures to the IkCF. The Agency shall use it for the compensation of owners in accordance with the criteria prescribed by law.
51. By decision no. 1232 of 18 June 2008 the Government allocated twenty-nine objects, mainly warehouses, factories and office buildings, to the IkCF. The Agency is responsible for using it for the compensation of owners in accordance with the criteria prescribed by law.
52. By decision no. 1696 of 24 December 2008 the Government allocated thirty-two objects, mainly warehouses, office buildings and workshops to the IkCF. The Agency is in charge of using it for the compensation of owners in accordance with the criteria prescribed by law.
53. With regard to the appeal procedure before the Supreme Court, the Code of Civil Procedure, in so far as relevant, reads as follows:
Article 472
“Decisions of the Court of Appeal and the District Court may be appealed against to the Supreme Court on the following grounds: (a) the law has not been complied with or has been applied erroneously; (b) there have been serious breaches of procedural rules (pursuant to Article 467 of the Code); (c) there have been procedural violations that have affected the adoption of the decision. ...”
Article 480
“An appeal [to the Supreme Court] shall be declared inadmissible if it contains grounds other than those provided for under the law. The inadmissibility of appeals shall be decided upon in deliberations in camera.”
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1