ITEMID: 001-82055
LANGUAGEISOCODE: ENG
RESPONDENT: GEO
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF RIZHAMADZE v. GEORGIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
TEXT: 6. The applicant was born in 1970 and lives in Tbilisi.
7. The applicant worked as an officer at a regional branch of the Customs Department (hereafter “the old customs office” of “the Department”), an agency of the Ministry of Finance. Due to the structural reorganisation of the Department on 30 June 1995, he was released by an administrative order of 5 August 1995, together with some other people. This order noted that the discharged officers were to be transferred to another, newly established regional customs office (“the new customs office”).
8. On 5 August 1995 the applicant requested the Department's authorisation to take up his duties at the new customs office. No reply was forthcoming. For the next six years, he complained on numerous occasions before various governmental agencies about the inability to continue his service.
9. In a letter of 21 March 2001, the Department informed the applicant that, after its reorganisation on 30 June 1995, staff had been significantly reduced and, in so far as he had continuously been absent from the old customs office without authorisation, the administration had decided not to employ him any longer. The lawfulness of such a decision, the letter noted, was assured by the provisions of the Labour Code (“the LC”), the sole legislative act which regulated civil servants' labour disputes at that time. The applicant was invited to visit the Department's human resources office, in order to obtain the order for his dismissal and the work log.
10. On 23 May 2001 the applicant sued the Department for unfair dismissal, requesting reinstatement to his position and compensation for loss of salary.
11. In a first instance judgment of 22 November 2001, the Isani-Samgori District Court in Tbilisi found in the applicant's favour. However, in an appellate decision of 15 April 2002, the Tbilisi Regional Court rejected his action as time-barred. The appellate court first noted that, in so far as the Civil Service Act of 31 October 1997 had not been enacted at the time of the applicant's dismissal, only the provisions of the LC had been applicable to the dispute. Given the fact that the applicant had continuously been complaining before various authorities, except for the courts, about his inability to pursue his duties as a customs officer, the appellate court found that he had been well aware of the alleged breach of his rights since his dismissal took effect in 1995. In such circumstances, it concluded that the applicant had failed to comply with the one-month time-limit for lodging an employment action, as required by Article 204 § 1 of the LC.
12. In May 2002 the applicant lodged a cassation claim, in which he called into question the appellate court's assessment of the and certain evidence. It appears from the case file that the respondent Department did not submit any reply to that claim.
13. On 12 June 2002 the Civil Affairs Chamber of the Supreme Court of Georgia (“the Chamber”) at an oral hearing attended by the applicant, started the examination of the case but, due to the absence of the Department's representative, adjourned it. The Chamber also decided to dispense with an oral hearing in the further proceedings.
14. On 13 June 2002 the applicant, complaining about the absence of an oral hearing, requested the President of the Supreme Court to change the Chamber's composition. In a decision of 18 June 2002, the Chamber dismissed this request as unsubstantiated.
15. In a decision of 19 June 2002, adopted under the written procedure, the Chamber dismissed the applicant's cassation claim. Having confirmed the appellate court's interpretation of the LC, it stated that it lacked jurisdiction to inquire into matters of fact, in so far as the applicant had not raised any “additional and well-founded cassation argument” (Article 407 § 2 of the Code of Civil Procedure).
Pursuant to Article 393 §§ 1 and 2, only the lawfulness of an appellate judgment could be challenged in a cassation claim. The disputed judgment could be found to be unlawful if the appellate court had wrongly applied or interpreted legislative provisions.
Article 396 § 1 (f) required the appellant to mention in his or her cassation claim those facts which supported the alleged breaches of procedural law if the cassation claim was calling into question not only substantive but also procedural legal provisions.
Article 404 § 1
“The cassation court shall review the [disputed] judgment only in so far as challenged in the cassation claim. The cassation court cannot go beyond the facts referred to under Article 396 § 1 (f) and inquire of its own motion into other procedural breaches.”
“The cassation court shall take into account the party's submissions only in so far as disclosed by the case file or the appellate judgment; only the facts submitted under Article 396 § 1 (f) can be taken into account.
The establishment of the facts [by the appellate court] is binding on the [cassation] court, unless an additional and well-founded cassation argument has been raised.”
“In the event the cassation court finds it appropriate..., it can decide the case without an oral hearing. The parties shall be notified of such a decision.”
Article 411
“The cassation court shall take a [final] decision itselfby the appellate court without procedural breaches and there is no need for additional fact finding.”
Article 412 § 1 and 2
”If it is not possible for the cassation court to decide the case in accordance with Article 411, it shall quash the appellate judgment and remit the case for a retrial.
If the cassation court quashes the disputed judgment because of the legal assessment, it shallhas to be collected further and what other procedural acts are to be conducted.”
The Constitutional Court dismissed the applicant's complaint challenging Article 408 § 3 of the CCP, which provided for the possibility to dispense with an oral hearing in cassation proceedings.
The Constitutional Court noted that, unlike an appellate court which established facts, the cassation court could only review the application of legal provisions. It could however examine, on the basis of Articles 396 § 1 (f) and 411 §§ 1 and 2 of the CCP, the facts which have been explicitly raised by the appellant in relation to the alleged violations of procedural law.
Consequently, whilst the scope of the review was mostly limited to the assessment of the application of procedural and substantive law, the Constitutional Court concluded that the right to an oral hearing in cassation proceedings was not absolute.
In its judgment of 28 February 2006 in the case of “Gokhi” v. “Telasi” JSC, the Supreme Court defined the notion of an “additional and well-founded cassation argument” (Article 407 § 2 of the CCP), as follows:
“...'An additional and well-founded cassation argument' is ... a reference to those procedural breaches which, having been committed by the appellate court during the examination of the case, have resulted in an erroneous assessment of the matters of fact and/or the incorrect interpretation and application of substantive legal provisions.”
The LC regulated all types of private labour relations between employers, employees and labour unions. Pursuant to Article 1 § 2, pending the adoption of the Civil Service Act, the LC was fully applicable to the civil service.
Pursuant to Article 203 § 1 of the LC, the dismissed employee had the right to apply to a court with a reinstatement claim. Under Article 204 § 1 of the LC, the limitation period for lodging such a claim was one month and it started to run from the moment the employee concerned received the relevant order of dismissal.
The Civil Service Act was enacted on 31 October 1997 and became the lex specialis with regard to civil servants' relations with the State, including labour disputes. The Act did not have retroactive force.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-121613
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: CHAMBER
DATE: 2013
DOCNAME: CASE OF NICULESCU v. ROMANIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence;Respect for private life);No violation of Article 6+6-3-a - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Criminal proceedings;Article 6-3-a - Information on nature and cause of accusation);No violation of Article 6+6-3-b - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Criminal proceedings;Article 6-3-b - Preparation of defence);No violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Criminal proceedings;Article 6-3-d - Examination of witnesses)
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Nona Tsotsoria
TEXT: 5. The applicant was born in 1956 and lives in Bucharest. At the relevant time, she was a lawyer specialised in criminal matters, in the Bucharest Bar Association.
6. On 4 April 2000 the Anti-Corruption Department of the Prosecutor’s Office attached to the Supreme Court of Justice (“the prosecutor’s office” or “the prosecutor”) authorised telephone tapping in respect of the applicant and her husband for a period of six months, running until 4 October 2000. The authorisation was granted at the request of the Romanian Intelligence Service (“the RIS”) under the National Security Act (Law no. 51/1991).
7. On 25 August 2000 the prosecutor’s office issued a new similar authorisation, under the National Security Act, granting interception of another of the applicant’s telephone lines, also until 4 October 2000.
8. On 11 September 2000 the RIS informed the prosecutor that the applicant had given bribes to several judges and prosecutors in order to obtain decisions favourable to her clients. It based the accusation on information obtained through the telephone tapping. Several conversations between the applicant and judge V.A. concerning cases of the applicant’s clients had been recorded between 7 and 14 June 2000.
The RIS handed over the audio tapes and their transcripts to the prosecutor’s office. The prosecutor then continued the surveillance of the applicant’s activities, including through telephone tapping.
9. In its report, the RIS referred to G.D. as the applicant’s “intimate friend”, whereas other participants in the various conversations recorded are referred to simply as “friend”. Those syntagms were reproduced several times in the decision adopted by the first-instance court.
10. On 30 April 2001 the prosecutor instituted criminal proceedings against the applicant (începerea urmăririi penale).
11. In the evening of 3 May 2001, as the applicant was returning home by car accompanied by T.C., a fellow lawyer, she was apprehended by the police and taken to the prosecutor’s office for questioning on charges of corruption.
12. The applicant was shown the RIS report of 11 September 2000 (see paragraph 8 above) and then questioned throughout the night. According to her, T.C. was not allowed to attend the actual questioning; he was allowed to see the applicant only afterwards, when she was writing a statement, which he then read and countersigned. In her statement the applicant confessed to the crimes and gave a detailed description of the facts. While the applicant was in the prosecutor’s office, T.C. completed a power of attorney document so that he could represent her in the event that she was taken into custody that night. The applicant did not sign that document.
13. The applicant lodged a criminal complaint against the prosecutor in charge of the proceedings on the night of 3 May 2001, but on 2 September 2002 the Prosecutor’s Office attached to the Supreme Court of Justice decided not to prosecute. The applicant did not object to that decision before the courts.
14. On 4 May 2001 the applicant was hospitalised for panic attacks, impulsive personality disorders and stress induced by her workload. She left the hospital the next day, on her own initiative.
15. On 7 May 2001 the prosecutor ordered the applicant’s detention pending trial. However, she could not be arrested, as she had left the country. On 14 July 2001 the applicant was apprehended in Bulgaria. She was extradited at the prosecutor’s request.
16. On 6 June 2001 the prosecutor set in motion the criminal trial against the applicant (punerea în mişcare a acţiunii penale).
17. On 18, 22 and 26 September, and 1 October 2001 the applicant gave new statements to the prosecutor in the presence of her appointed counsels. She retracted her initial confession, claiming that it had not represented the truth but was a mere reproduction of what the prosecutor had read to her from the RIS report (see paragraph 8 above). She claimed that at the time she had made the initial statement she had been in a state of shock, having been traumatised by the prosecutor and forced to confess to deeds that she had not committed. The prosecutor had suggested that if she confessed, only disciplinary action would be taken against the judges and prosecutors suspected of corruption; she was therefore led to believe that through her action she would help the magistrates who were under investigation.
She denied having committed any of the acts of corruption imputed to her and claimed that she could not remember what she and the other defendants had been referring to in the conversations recorded by the RIS and played to her by the prosecutor during questioning.
Mention was made in the statements that the applicant had been informed of the charges brought against her and of the rights of the defence.
18. On 12 December 2001 the prosecutor indicted the applicant for trading in influence (trafic de influenţă), giving bribes (dare de mită) and illegally crossing the border (trecerea frauduloasă a frontierei). Several other persons were committed to trial under the same measure, including judges V.A. and R.F. and a prosecutor.
In particular, the applicant was accused of having offered money to judges, including V.A. and R.F., in an attempt to have some of her clients released from pre-trial detention. She was also accused of having fled the country in order to escape the criminal proceedings against her.
19. The case was heard by the Criminal Division of the Supreme Court of Justice.
20. On 31 January 2002 the Supreme Court heard testimony from each defendant and the relevant parts of the audio tapes were played in their presence. None of them denied having had the recorded conversations.
21. The applicant denied having committed any crime and claimed that she could not remember exactly what she had been referring to in the conversations recorded by the RIS. She maintained that the discussions with V.A. had concerned only matters of law.
22. Judge V.A. also denied having committed any crime. He explained that his discussions with the applicant, which had been recorded through secret surveillance, as well as those he had had with his fellow judges about the cases referred to by the applicant, had concerned only questions of law. He maintained that he had not accepted any money or promise of money from the applicant. He reiterated that in his capacity as judge inspector, he was entitled to discuss questions of law with his colleagues.
23. Judge R.F. also denied having committed any crimes. She claimed that the only relevant discussions she had had with V.A. were in connection with the cases in which they had been sitting on the same bench. She declared that she did not know the applicant, had not accepted any money to intervene in any case and that the measures under scrutiny had been legitimate.
24. At the same hearing on 31 January 2002, the co-defendants alleged that there were procedural defects. They argued that as the prosecutor had failed to request the necessary authorisation for intercepting magistrates’ conversations, the audio recordings were illegal.
The court gave detailed answers to their complaints. Concerning the telephone tapping, it noted that one of the applicant’s clients had been indicted for weapons and ammunition smuggling, which, under the National Security Act, constituted a threat to national security and thus allowed the RIS, under a procedure regulated by the Code of Criminal Procedure, to seek authorisation from the prosecutor to intercept the suspect’s conversations. The fact that during the surveillance activity the authorities came across telephone discussions among the codefendants which led them to believe that the applicant was trying to corrupt judges constituted preliminary investigation (acte premergătoare).
The Supreme Court reiterated that so long as the recordings had been obtained during the preliminary investigation phase, they did not constitute evidence. Only if the judicial authorities considered their content relevant for the criminal proceedings could those recordings be admitted to the file.
25. On 21 February 2002 the statements made by the defendants were read out in court. They were allowed to supplement their testimony and put questions to their co-defendants.
26. At the same hearing the Supreme Court heard testimony from the witnesses for the prosecution.
27. On 14 March 2002, at the defendants’ request, the Supreme Court ordered an expert examination of the audio tapes, in accordance with Article 915 of the Code of Criminal Procedure (“the CCP”).
28. At a hearing on 4 April 2002 the Supreme Court dismissed a request by the co-defendants, A.V. and R.F., for the RIS to be asked to adduce the reports drafted by the officers in charge of the surveillance and the reports attesting to the transfer of the audio tapes between the RIS and the prosecutor’s office. The Supreme Court considered that that evidence was irrelevant in so far as none of the parties involved had contested having had the recorded conversations.
29. On 4 April, 25 April, 9 May, and 6 June 2002 the Supreme Court heard eight witnesses for the defence.
30. Lawyer T.C. attested that the applicant had been in a state of shock the night when she had been taken to the prosecutor’s office to give a statement; that he had accompanied her there but had not been allowed to attend the actual questioning; and that only afterwards had he seen her writing the statement, which he had then read and countersigned. He reiterated that while the applicant had been in the prosecutor’s office, he had completed a power of attorney document so that he could represent her (see paragraph 12 above).
31. On 3 June 2002 the two experts rendered their report, as requested by the Supreme Court. They concluded that the audio tapes were neither authentic nor original and advised against admitting them as evidence in the criminal trial.
32. On 6 November 2002 the Supreme Court of Justice, sitting as a three-judge bench, rendered its decision. It changed the legal classification from a continuous crime of giving bribes, to three individual crimes of giving bribes. It convicted the applicant for the three counts of giving bribes, for trading in influence and for illegally crossing the border, and sentenced her to six years’ imprisonment. The co-defendants were likewise convicted and received prison sentences for their deeds. The sums of money received in bribes were confiscated.
33. The Supreme Court considered that the statements made by the defendants and the witnesses, both before the prosecutor and in open court, corroborated the theory that some of the applicant’s clients had been released from prison because she had bribed the judges. The court also noted that some of the witnesses for the prosecution who had retracted their initial statements had admitted, either before the prosecutor or in court, that they had been pressured by the defendants into changing their declarations. The court also considered that the testimonies given by the applicant and the witnesses corroborated the transcripts of the telephone conversations.
34. The Supreme Court also made a lengthy analysis of the transcripts, thus responding to the defendants’ allegations that they had been obtained unlawfully and that they could not be used as evidence as they had been collected during the preliminary investigation stage. The court reiterated that none of the participants had denied having had the conversations recorded on the tapes produced by the prosecutor and listened to in open court. It noted that the experts had not questioned that aspect either.
As for the authenticity and originality of the tapes, which the experts contested, the court pointed out that, in the sense of Article 224 of the Code of Criminal Procedure, the report concerning the transcripts, drafted by the prosecutor after the opening of the criminal proceedings, represented the evidence and not the tapes themselves (which were attached to the prosecutor’s report, as the law required); neither did the original harddisk on which the conversations had been recorded. In his report, the prosecutor attested to the authenticity of the recordings and proved that the procedure in place for the telephone tapping had been respected. The court confirmed those aspects. The defendants had had ample opportunity to challenge it, as provided for by the CCP.
Moreover, the court observed that the original recording had been digital, done straight onto the hard-disk of the equipment used by the RIS for telephone tapping; the tapes attached to the prosecutor’s report were consequently copies of the original recordings. Because of its nature and purpose, the hard-disk could not be attached to the prosecutor’s report; furthermore, it did not need to be attached as it did not constitute evidence. The court concluded that the absence of the hard-disk did not automatically disqualify the transcripts from being used as evidence.
The court noted that, for obvious reasons related to respect for the private life of those involved, it had not listened to all the conversations recorded by the RIS, but only to those relevant to the charges brought before it. However, the parts presented to it and to the defendants by the prosecutor represented full conversations. The dialogues were coherent, the sentences were not truncated and no words were missing or had been inserted into the dialogues. It observed that neither the experts nor the parties had claimed that the content of the conversations heard in court had been falsified.
35. The court was therefore satisfied that the prosecutor’s report on the telephone tapping and its transcripts qualified as lawful evidence for admission to the case file.
36. The Supreme Court further dismissed the applicant’s complaints concerning the manner in which she had been questioned by the prosecutor in the night of 3 May 2001. In particular, the court observed that the applicant’s statement was clear and coherent. In the court’s opinion, it showed no signs of having been given in an unbalanced mental state, as the applicant had tried to claim afterwards. The court proceeded to examine in parallel the RIS report and the applicant’s incriminatory statement, and noted that she had offered significant details that did not figure in the RIS report. This proved that she had had the conversations, as only a direct participant could have known aspects that had not been revealed in the RIS report but had later been confirmed by supporting evidence. It also noted that neither she nor her counsel had made any complaints at that time about the questioning or the alleged disregard for the rights of the defence.
37. All parties appealed against the judgment. In particular, the applicant complained that the Supreme Court had changed the classification of the crimes; that she had been forced to make the initial statement of 4 May 2001; that the telephone tapping had been illegal and in breach of Article 8 of the Convention – she asked the court to hear evidence from the experts – and lastly, that there had not been sufficient elements to justify her conviction by the lower court.
The applicant made no specific complaints concerning the wording of the judgment, in particular about the manner in which the court had qualified one of her interlocutors as an “intimate friend”.
38. The case was heard by a nine-judge bench of the Supreme Court, who rendered the final decision on 8 October 2003.
39. The Supreme Court noted that the telephone tapping had not observed the stricter requirements relating to magistrates. It was nevertheless satisfied that such requirements were not relevant in the case because the magistrates had not been targeted by the initial measure of telephone tapping; on this point it reiterated that the information concerning the magistrates’ alleged involvement had been obtained incidentally by the prosecutor. It observed that for the procedural acts concerning the magistrates the prosecutor had obtained all the necessary authorisations. The court also reiterated that as the tapes had disclosed information on the commission of crimes, they could not have been ignored by the authorities. Furthermore, the tapes had been made with the prosecutor’s prior approval, as the law had required at the time, and had not contravened public order. The Supreme Court attached great importance to the fact that the defendants had not denied having had the recorded conversations. It also noted that the information obtained through the telephone tapping had been confirmed by the evidence in the file. It therefore concluded that the tapes could be used as evidence.
The Supreme Court also decided that the evidence had to be interpreted in its entirety and in context, and reiterated that the law did not give precedence to any type of evidence to the detriment of others.
40. It therefore concluded that the evidence in the file was sufficient and that the first-instance court had correctly interpreted the facts based on the elements at its disposal.
41. The Supreme Court noted that the first-instance court had changed the legal classification of the crimes committed by the applicant from a continuous crime of giving bribe to several individual crimes of giving bribes and of the crimes committed by V.A. from a continuous crime of trading in influence and aiding and abetting the applicant to give bribes to several individual crimes of trading in influence and aiding and abetting the applicant to give bribes. It accepted that the first-instance court had erred in not allowing the parties to discuss the new legal classification of the crimes. However, it noted that such a failure did not trigger the nullity of the judgment and that in fact there had not been any risk of the defendants being disadvantaged by the new classification, as the consequences in law for both situations were identical.
42. From the date of her arrest on 7 December 2001 until her release on 1 March 2005, the applicant was held mainly in Bucharest-Rahova and Târgşor Prisons. She was first taken to the latter on 7 September 2002.
43. Regarding the conditions of detention in Rahova Prison, the applicant alleged that she had been held in overcrowded, badly ventilated cells. She claimed that the occupancy rate had been between nine and twenty prisoners to one six-bed cell. She had had to share the cell with individuals suffering from consumption or HIV. She alleged that the detainee who had been suffering from HIV had been violent and had threatened her fellow inmates that she would contaminate them with the virus. The applicant further alleged that the prison authorities had failed to intervene, despite her complaints.
44. It appears from the official prison documents submitted by the Government that in Rahova Prison the applicant was held in a 21 sq. m cell containing ten bunk beds. The cell had a 1.44 sq. m window, and the ventilation was ensured naturally through the door and window. It contained a separate toilet measuring 1.78 sq. m with a window and a shower room measuring 6.48 sq. m. The detainees had permanent access to running drinkable water; hot water was available twice a week for two hours at a time. The inmates were responsible for cleaning the facilities with products provided by the prison administration.
The detainees were allowed daily walks of one to three hours in the prison court yard.
45. According to the applicant, during her stay in Târgşor Prison she had had to work for more than ten hours each day and received less than the monthly average salary.
46. The official prison records submitted by the Government attested that the applicant had worked an average of 17.76 days a month for an average of eight hours a day, which was below the twelve-hour working day permissible under the Execution of Sentences Act (“Law no. 23/1969”; see paragraph 59 below). In accordance with the relevant law, the applicant’s sentence was reduced in proportion to the work performed. She also received remuneration for her work, of which, in accordance with the law, 10% was paid to her and 90% to the prison.
47. During her stay in Târgşor Prison the applicant lodged a complaint under Emergency Ordinance no. 56/2003 on the rights of persons deprived of their liberty (“Ordinance no. 56/2003”; see paragraph 59 below) alleging lack of privacy when making telephone calls from prison. She complained that the telephones were too close to each other to allow for private conversations and that the wardens remained close by when prisoners were using the phones. She sought 5,000 euros (EUR) in damages for mental suffering.
48. It appears from the information submitted by the prison authorities that detainees were required to write down in a special register the date and start time of telephone calls, the number dialled, and to sign their name.
49. On 26 October 2004 the Ploieşti District Court dismissed the complaint, considering that the situation in Târgşor Prison respected the relevant regulations concerning the confidentiality of telephone conversations and that therefore no infringement of the privacy rights guaranteed under Article 8 could be found.
50. In an appeal lodged against the District Court’s judgment, the applicant pointed out that all the phone numbers dialled from prison were recorded in a special register, along with the date and time of the respective calls.
51. In a final decision of 15 December 2004 the Prahova County Court dismissed the appeal and upheld the District Court’s decision. It observed that the telephones were placed at regular two-metre intervals approximately three to four metres from the warden’s booth. Under the regulations, the warden had an obligation to check that the telephone number dialled was the same as that entered by the prisoner in the special register, but she did not monitor the telephone conversation itself. The court considered that the registration of the dialled numbers did not constitute a breach of prisoners’ privacy rights.
52. On 4 September 2003 the applicant filed for divorce and custody of her minor child, on the grounds that her relationship with her husband had started to become tense in 2000; he had neglected their two children and had ultimately left home in May-June 2001.
53. The request was granted and in a decision of 13 November 2003 the Bucharest District Court declared the couple divorced. The applicant reverted to her maiden name, Niculescu.
54. On 10 May 2001 the applicant was suspended from the Bar Association for the duration of the criminal proceedings against her.
On 27 October 2003 the Bucharest Bar Association decided, based on a recommendation by the National Bar Association, to exclude the applicant from its list of members. This decision was not communicated to the applicant.
55. As the final decision of 8 October 2003 (see paragraphs 38 and following, above) did not prohibit the applicant from exercising her profession, on 5 May 2005 she asked the Bucharest Bar Association to reinstate her. On 20 April 2005 the Bucharest Bar refused her request and informed her of the decision taken on 27 October 2003.
56. Having objected unsuccessfully to the National Bar Association, the applicant lodged a complaint with the administrative courts, invoking both procedural and substantive flaws in the contested decision.
57. On 8 January 2008 the Bucharest Court of Appeal dismissed the complaint, giving detailed responses to all the arguments raised by the applicant. In particular, the court noted that the applicant’s name had been struck from the Bar Association’s list of lawyers not to prohibit her from exercising her profession, but because, in committing crimes in the exercise of her profession, she had become unfit to practise as a lawyer, in accordance with the Legal Profession Act (Law no. 51/1995).
58. An appeal lodged by the applicant was subsequently dismissed by the High Court of Cassation and Justice, which gave the final ruling in the case on 22 October 2008.
59. The relevant legal provisions concerning the conditions of detention, including a succession of laws on the execution of sentences – Law no. 23/1969, Ordinance no. 56/2003 (in force since 27 June 2003) and Law no. 275/2006 (in force since 23 July 2006) – and the effective remedies they introduced are summarised in Iacov Stanciu v. Romania (no. 35972/05, §§ 11319, 24 July 2012).
In addition, the provisions of the above laws concerning prison work are detailed in Floroiu v. Romania (dec.), no. 15303/10, §§ 17-21, 12 March 2013).
The relevant findings and recommendations of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) and the reports by the Council of Europe Commissioner for Human Rights, made following numerous visits to Romanian prisons, are also summarised in Iacov Stanciu, cited above, §§ 125-29).
There is no CPT report concerning Rahova Prison. However, a Romanian NGO, APADOR-CH (Association for the Defence of Human Rights in Romania – the Helsinki Committee) visited that establishment on 13 February 2009. The report prepared following its visit indicated that, based on the information submitted by the authorities, the average personal space for each prisoner was 2.77 sq. m. The overcrowding was obvious when visiting individual cells: one of the cells visited, measuring 18 sq. m, had accommodated eleven prisoners, even though only ten beds had been available. The report indicated that only one detainee had complained about the quality of the prison food and that many prisoners had preferred to eat the food they received from home or bought from the shop (see Goh v. Romania, no. 9643/03, § 38, 21 June 2011).
60. The legislation in force at the relevant time concerning telephone tapping, including the National Security Act, is described in Dumitru Popescu v. Romania (no. 2) (no. 71525/01, §§ 39-46, 26 April 2007).
61. The relevant provisions of the Code of Criminal Procedure concerning the preliminary investigation read as follows:
“1. The criminal investigation authorities may conduct any preliminary investigation measures.
...
3. The report of execution of any preliminary investigation measure shall constitute evidence.”
“The criminal investigation authority to which an application is made in accordance with any of the arrangements set forth in Article 221 shall order, by decision (rezoluţie), the opening of criminal proceedings where the content of that application or the preliminary investigation does not disclose any grounds for not prosecuting, as provided for in Article 10, with the exception of the ground set out in subparagraph (b)1.”
62. Concerning the telephone tapping at the preliminary investigation stage, the High Court of Cassation and Justice considered, in a decision rendered in an appeal on points of law (decision no. 10 of 7 January 2008) that the lawfulness of the interception was not dependent on whether criminal proceedings had been opened; it further noted that the law did not impose an obligation on the authorities to inform the person concerned of that measure, an omission which the High Court found reasonable, given the purpose of the telephone tapping and its secrecy. However, the person concerned had subsequently had an opportunity to listen to the recordings and contest their content. The High Court also reiterated that there was no prior value attached to the report drafted by the prosecutor, as the courts were free to assess the evidence in the context of the files under examination.
By its decision no. 962 of 25 June 2009, the Constitutional Court confirmed that Article 911 of the CCP did not allow for evidence to be gathered during the preliminary investigations; any such evidence would fall under the courts’ scrutiny.
63. The provisions of Ordinance no. 56/2003 and the subsequent Execution of Sentences Act (Law no. 275/2006), concerning the use of public telephones in prison, are described in Brânduşe v. Romania (no. 6586/03, § 26, 7 April 2009) and in Coscodar v. Romania ((dec.), no. 36020/06, § 12, 9 March 2010). In addition, in accordance with Article 7 of Order no. 4622 issued on 22 September 2003 by the Director General of the Prison Administration pursuant to the above Ordinance, the prison staff had to keep a record of the numbers dialled by the detainees and the start time of telephone calls.
VIOLATED_ARTICLES: 3
8
VIOLATED_PARAGRAPHS: 8-1
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1
6-3
NON_VIOLATED_BULLETPOINTS: 6-3-a
6-3-b
6-3-d


ITEMID: 001-102173
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF SAVEZ CRKAVA "RIJEC ZIVOTA" AND OTHERS v. CROATIA
IMPORTANCE: 2
CONCLUSION: Remainder inadmissible;Violation of Art. 14+9;Non-pecuniary damage - award
JUDGES: Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 5. The applicants are churches of a Reformist denomination which are registered as religious communities under Croatian law and which have their seats in Zagreb (the first and second applicant churches) and Tenja (the third applicant church).
6. The first applicant church has been present in Croatia since 1993, the second since 1989 and the third since the sixteenth century as part of the Reformed Church and since 2001 as an independent church. The applicant churches were entered in the register of religious communities in Croatia on 18 December 2003 (the first applicant church), 3 December 2003 (the second applicant church) and 14 October 2003 (the third applicant church), in accordance with the Religious Communities Act.
7. On 21 June 2004 the applicant churches submitted a request to the Government’s Commission for Relations with Religious Communities (Komisija za odnose s vjerskim zajednicama – “the Religious Communities Commission”) in order to conclude an agreement with the Government of Croatia, as envisaged in section 9(1) of the Religious Communities Act (see paragraph 18 below), which would regulate their relations with the State. They explained that without such an agreement they were unable to provide religious education in public schools and nurseries, to provide pastoral care to their members in medical and social-welfare institutions, as well to those in prisons and penitentiaries, or to perform religious marriages with the effects of a civil marriage.
8. On 23 December 2004 the Government of Croatia adopted an instruction (zaključak – “the Instruction”) setting out the criteria which religious communities had to satisfy in order to conclude such an agreement with it (see paragraph 19 below).
9. In a letter of 12 January 2005 the Religious Communities Commission informed the applicant churches that they did not satisfy, either individually or jointly, the historical and numerical criteria set out in the above Instruction, that is to say, that they had not been present in the territory of Croatia since 6 April 1941 and that the number of their adherents did not exceed 6,000 (see paragraph 19 above). Referring to section 21 of the 2003 Health Care Act (see paragraph 21 below) and sections 14, 78(1) and 95 of the Enforcement of Prison Sentences Act (see paragraphs 23-26 below), it also remarked that members of religious communities which had not concluded the relevant agreement with the Government of Croatia had a right to receive pastoral care in medical and social-welfare institutions as well as in prisons and penitentiaries.
10. On 10 February 2005 the applicant churches submitted another request to conclude an appropriate agreement with the Government of Croatia, this time addressing it to the Prime Minister directly.
11. In a letter of 15 June 2005 the Religious Communities Commission replied to the applicant churches’ request of 10 February 2005, informing them again that they did not satisfy, either individually or jointly, the criteria set forth in the Instruction of 23 December 2004, this time without specifying which particular criteria had not been met. It again referred to section 21 of the 2003 Health Care Act and sections 14, 78(1) and 95 of the Enforcement of Prison Sentences Act, reiterating its opinion that the members of religious communities which had not concluded appropriate agreements with the Government of Croatia had a right to receive pastoral care in medical and social-welfare institutions and in prisons and penitentiaries.
12. The applicant churches then lodged a request for the protection of a constitutionally guaranteed right (zahtjev za zaštitu ustavom zajamčenog prava) with the Administrative Court (Upravni sud Republike Hrvatske) against the Religious Communities Commission’s refusal of 15 June 2005, in accordance with section 66 of the Administrative Disputes Act (see paragraph 28 below). They argued that the refusal, even though it had been given in the form of a letter, constituted “an individual legal act” (that is, a decision), within the meaning of section 66 of the Administrative Disputes Act, that had violated their constitutional right to equality of all religious communities before the law, as guaranteed by Article 41 of the Constitution (see paragraph 16 below).
13. On 12 October 2006 the Administrative Court declared their action inadmissible, holding that the Religious Communities Commission’s refusal did not constitute “an individual act” for the purposes of section 66 of the Administrative Disputes Act, and thus was not susceptible to that court’s review.
14. The applicant churches then lodged a constitutional complaint, relying again, inter alia, on Article 41 of the Constitution and alleging a violation of their constitutional right to equality of all religious communities before the law. On 1 October 2006 the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed the applicant churches’ constitutional complaint, finding, inter alia, that Article 41 of the Constitution was not applicable in the particular case.
15. Meanwhile, on 30 September 2005 the applicant churches filed a petition with the Constitutional Court for an abstract review of constitutionality and legality, asking it to examine the conformity of the Instruction of 23 December 2004 with the Religious Communities Act and Article 41 of the Constitution. On 5 June 2007 the Constitutional Court declared the applicant churches’ petition inadmissible, finding that the contested Instruction was not subordinate legislation susceptible to a review of constitutionality and legality.
16. The relevant provisions of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 8/1998 (consolidated text), 113/2000, 124/2000 (consolidated text), 28/2001 and 41/2001 (consolidated text), 55/2001 (corrigendum) and 76/2010) read as follows:
“Everyone in the Republic of Croatia shall enjoy rights and freedoms regardless of their race, colour, sex, language, religion, political or other belief, national or social origin, property, birth, education, social status or other characteristics.
All shall be equal before the law.”
“Rights and freedoms may be restricted only by law in order to protect the rights and freedoms of others, the legal order, public morals or health.
Every restriction of the rights and freedoms should be proportional to the nature of the necessity for the restriction in each individual case.”
“Freedom of conscience and religion and freedom to profess faith or other belief publicly shall be guaranteed.”
“All religious communities shall be equal before the law and shall be separated from the State.
Religious communities shall be free to, in accordance with the law, perform religious services publicly, open schools, educational and other institutions, social-welfare and charitable institutions and to administer them, and in their activities enjoy the protection and assistance of the State.”
“International agreements in force, which were concluded and ratified in accordance with the Constitution and made public, shall be part of the internal legal order of the Republic of Croatia and shall have precedence in terms of their legal effects over the [domestic] statutes. ...”
17. In its decisions nos. U-I-892/1994 of 14 November 1994 (Official Gazette no. 83/1994) and U-I-130/1995 of 20 February 1995 (Official Gazette no. 112/1995) the Constitutional Court held that all rights guaranteed in the Convention and its Protocols were also to be considered constitutional rights having legal force equal to the provisions of the Constitution.
18. The relevant provisions of the Act on the Legal Status of Religious Communities (Zakon o pravnom položaju vjerskih zajednica, Official Gazette no. 83/2002 – “the Religious Communities Act”), which entered into force on 24 July 2002, read as follows:
“A church or a religious community of a different name (hereafter ‘religious community’) within the meaning of this Act is a group of natural persons who exercise freedom of religion by the equal public performance of religious ceremonies and by other manifestations of their faith (hereafter ‘adherents’) and is entered in the register of religious communities in the Republic of Croatia.”
“(1) Religious communities operating as legal persons on the day of the entry into force of this Act (hereafter ‘existing religious communities’) shall be entered in the register [of religious communities] upon their submission of an application for registration.
(2) Congregations which on the day of the entry into force of this Act do not operate as religious communities or which are established after the entry into force of this Act (hereafter ‘newly established religious communities’) shall be entered in the register [of religious communities] upon their submission of an application for registration. An application for registration in the register [of religious communities] may be submitted by those congregations which, before submission of such an application, have operated for at least five years as associations with legal personality.”
“(1) Issues of common interest for the Republic of Croatia and one or more religious communities may also be regulated by an agreement made between the Government of the Republic of Croatia and the religious community.
(2) With a view to implementing [legal] instruments regulating relations between the State and religious communities, as well as other issues of interest for the status and operation of religious communities, the Government of the Republic of Croatia shall establish a Commission for Relations with Religious Communities.”
(d) Religious education and teaching of religion in educational institutions
“(1) In nurseries, at the request of parents or guardians, the curriculum of nursery education shall include teaching of religion. Teaching of religion shall be organised in accordance with the law and with an agreement between the religious community and the Government of the Republic of Croatia.
(2) In elementary schools and high schools, at the request of parents or guardians of pupils younger than 15 years and on the basis of a joint declaration by students of 15 years of age or above and their parents or guardians, a religious education course shall be organised as an optional course in accordance with the prescribed curriculum and an agreement between the religious community and the Government of the Republic of Croatia.”
(e) Pastoral care in medical and social-welfare institutions
“The right of a religious community to provide pastoral care to its members in medical and social-welfare institutions shall be guaranteed. The manner of exercising this right shall be regulated by an agreement between the religious community and the founder of those institutions.”
(f) Pastoral care in prisons and penitentiaries
“The right of a religious community to provide pastoral care to its members in prisons and penitentiaries shall be guaranteed. The manner of exercising this right shall be regulated by an agreement between the religious community and the Government of the Republic of Croatia.”
(g) Pastoral care in the armed forces and the police
“A religious community shall have the right to provide pastoral care to its members serving in the armed forces and the police, as well as to other persons permanently employed in the armed forces and the police, and to members of their families under the conditions and in the manner regulated by an agreement with the Government of the Republic of Croatia.”
19. The Government of Croatia’s Instruction (zaključak) of 23 December 2004 setting out the criteria which religious communities have to satisfy in order to conclude an agreement with it (“the Instruction” – not published in the Official Gazette) reads as follows:
“1. For the conclusion of an agreement on issues of common interest for the Republic of Croatia and one or more religious communities, made between the Government of the Republic of Croatia and a religious community, it is necessary for one or more religious communities wishing to conclude the agreement to satisfy one of the following two conditions:
- they were active in the territory of the Republic of Croatia on 6 April 1941 and have continued to operate in continuity and legal succession, and the number of [their] adherents exceeds six thousand, according to the last census,
- they are a historical religious community of the European cultural circle (Catholic Church, Orthodox Church, Evangelical Church in the Republic of Croatia, Reformed Christian Church in Croatia, Islamic Community in Croatia, Jewish Community in the Republic of Croatia).
2. A church or a religious community that secedes or has seceded from a church or a religious community shall be regarded as a new church or religious community, and its secession or establishment shall be taken as the beginning of its activities.
3. The Commission for Relations with Religious Communities shall be responsible for the implementation of this instruction.”
20. The relevant provisions of the Family Act (Obiteljski zakon, Official Gazette nos. 116/2003, 17/2004, 136/2004 and 107/2007), which entered into force on 22 July 2003, read as follows:
“Marriage shall be celebrated ... in a civil or a religious form.”
“Marriage in religious form with the effects of civil marriage shall be performed by the minister of a religious community with which the Republic of Croatia has regulated legal issues in this respect.”
“A marriage celebrated in religious form in accordance with the provisions of section 8 ... of this Act shall from the date of [its] celebration have all the effects of a civil marriage as prescribed by this Act.”
21. Section 21 of the former 2003 Health Care Act (Zakon o zdravstvenoj zaštiti, nos. 121/03, 48/05 (corrigendum), 85/06 and 117/08), which was in force between 6 August 2003 and 1 January 2009, provided that in the exercise of his or her right to health care, during a stay in a medical institution, every person had the right – in accordance with that Act and other subordinate legislation on compulsory health insurance – to a diet in accordance with his or her belief and the right to perform acts of worship in the areas provided for that purpose. In the case of death, everyone had the right to be treated in accordance with religious and other customs expressing piety to the deceased.
22. Section 22 of the new 2008 Health Care Act (Zakon o zdravstvenoj zaštiti, nos. 150/2008, 155/2009 and 71/2010), which entered into force on 1 January 2009, contains provisions identical to those of section 21 of the former 2003 Health Care Act (see the preceding paragraph).
23. The relevant provisions of the Enforcement of Prison Sentences Act (Zakon o izvršavanju kazne zatvora, nos. 128/99, 55/00, 59/00 (corrigendum), 129/00, 59/01, 67/01 (corrigendum), 11/02 (corrigendum), 190/03 (consolidated text), 76/07, 27/08 and 83/2009) provide as follows.
24. Section 14 provides that every prisoner has, under the conditions set forth in the Act, inter alia, the right to profess his or her faith and to consult an authorised cleric.
25. Section 78(1) provides that prisoners have the right to a diet in accordance with their religious demands, providing that such diet is feasible in the particular prison or penitentiary.
26. Section 95 provides that a prison or penitentiary where a large number of prisoners of the same faith are serving their sentences must provide their cleric, at least once a week, with an adequate place and time for worship.
27. The relevant provisions of the Act on the Government of the Republic of Croatia (Zakon o Vladi Republike Hrvatske, Official Gazette nos. 101/1998, 15/2000, 117/2001, 199/2003 and 77/2009 – “the Government of Croatia Act”), which entered into force on 5 August 1998, read as follows:
“The Government shall issue decisions (odluke), rulings (rješenja) and instructions (zaključci) on matters that cannot be regulated by decrees.
A decision shall be adopted to regulate particular issues within the competence of the Government or to order measures, give consent to or confirm acts of other authorities or legal entities, and to decide on other matters which cannot be regulated by subordinate legislation.
An instruction shall be adopted to define the Government’s position on issues concerning the implementation of an established policy, and to determine the tasks of State administrative bodies.
A ruling shall be adopted to decide on appointments or dismissals or other individual matters within the Government’s purview.”
“Decrees and rules of procedure shall be published in the Official Gazette. They shall enter into force on the eighth day from the date of their publication, unless the instruments in question provide for some other date [as the date] of their entry into force.
Decisions, rulings and instructions may be published in the Official Gazette if the Government so decides when adopting these instruments.”
28. The Administrative Disputes Act (Zakon o upravnim sporovima, Official Gazette of the Socialist Federal Republic of Yugoslavia no. 4/1977, and Official Gazette of the Republic of Croatia nos. 53/1991, 9/1992 and 77/1992) in its relevant part provides as follows:
“A request for the protection of a constitutionally guaranteed right or freedom ... if such a right or freedom has been violated by a final individual act [that is, decision], and no other judicial protection is secured, shall be decided by the [Administrative Court], by applying mutatis mutandis the provisions of this Act.”
29. Sections 67-76 provide for special proceedings for the protection of constitutionally guaranteed rights and freedoms from unlawful factual (physical) acts of public authorities, if no other judicial remedy is available. Under the case-law of the domestic courts, the protection against unlawful “acts” also includes omissions (for example, the Administrative Court in its decision no. Us-2099/89 of 21 September 1989 and the Supreme Court in its decision no. Gž-9/1993 of 6 April 1993 held that failure of the administrative authorities to carry out their own enforcement order constituted an “unlawful act” within the meaning of section 67 of the Administrative Disputes Act).
30. Section 67 provides that such proceedings are to be instituted by bringing an “action against an unlawful act” (tužba za zaštitu od nezakonite radnje) in the competent municipal court. The action must be brought against the public authority to which the factual act (or omission) is imputable (the defendant).
31. Section 73 provides that the court decides on the merits of the case by a judgment. If it finds in favour of the plaintiff, the court orders the defendant to desist from the unlawful activity and, if necessary, orders restitutio in integrum.
32. Section 74 provides that in proceedings following an “action against an unlawful act” the court is to apply, mutatis mutandis, the provisions of the Civil Procedure Act.
33. The relevant part of the Obligations Act (Zakon o obveznim odnosima, Official Gazette, nos. 35/2005 and 41/2008 – “the 2006 Obligations Act”), which entered into force on 1 January 2006 and abrogated the former 1978 Obligations Act (see the next paragraph), reads as follows:
“(1) Every natural person or legal entity is entitled to the protection of its rights of personality (prava osobnosti) under the conditions provided by law.
(2) Rights of personality within the meaning of this Act are the right to life, to physical and mental health, reputation, honour, dignity, name, privacy of personal and family life, liberty, etc.
(3) A legal entity shall have all the above-mentioned rights of personality – apart from those related to the biological character of a natural person – and, in particular, the right to a reputation and good name, honour, name or company name, business secrecy, entrepreneurial freedom, etc.”
“If a party is bound by law to enter into a contract, the other interested party may request that the contract be entered into without delay.”
“Anyone may request a court or other competent authority to order the cessation of an activity which violates his or her rights of personality and the elimination of its consequences.”
34. The text of section 157(1) of the former 1978 Obligations Act (Zakon o obveznim odnosima, Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 29/1978, 39/1985 and 57/1989, and Official Gazette of the Republic of Croatia no. 53/1991 with subsequent amendments – “the 1978 Obligations Act”) was nearly identical to the text of section 1048 of the current 2006 Obligations Act, and read as follows:
“Anyone may request a court or other competent authority to order the cessation of an activity which violates his or her rights of personality.”
35. Among Croatian legal scholars there is no consensus as to which rights, apart from those enumerated in section 19 of the Obligations Act, are to be considered rights of personality. It is, however, common ground that the following rights of natural persons fall into that category: the right to life, the right to physical and mental integrity (health), the right to liberty, the right to reputation and honour, the right to privacy of personal and family life, the right to secrecy of letters and personal manuscripts, the right to personal identity (in particular the rights to one’s image, voice and name) and the moral rights of the author. It would appear that only these rights have so far been interpreted as rights of personality by the Croatian courts in the application of section 157 of the former 1978 Obligations Act and section 19 of the current 2006 Obligations Act. The issue whether other rights guaranteed by the Constitution may, at this point, be qualified as rights of personality remains largely disputed.
36. The relevant part of the Anti-Discrimination Act (Zakon o suzbijanju diskriminacije, Official Gazette, no. 85/2008), which entered into force on 1 January 2009, reads as follows:
“Anyone who considers that his or her right has been violated because of discrimination may seek the protection of that right in the proceedings in which that right is being decided as the main issue, or may also seek protection in special proceedings referred to in section 17 of this Act.”
“(1) A person claiming to be a victim of discrimination under the provisions of this Act shall be authorised to bring an action and seek:
1. a declaration that the defendant has violated the plaintiff’s right to equal treatment or that the activities the defendant has undertaken or failed to undertake may directly result in the violation of the right to equal treatment (action for declaration of discrimination);
2. the cessation of activities which violate or may violate the plaintiff’s right to equal treatment, or to undertake activities which eliminate discrimination or its consequences (action to desist from or eliminate discrimination);
3. compensation for pecuniary and non-pecuniary damage caused by the violation of the rights protected by this Act (action for damages);
4. publication in the media of the judgment declaring the violation of the right to equal treatment, at the defendant’s expense.
(2) Unless this Act provides otherwise, the court shall decide on claims referred to in paragraph 1 of this section by applying the provisions of the Civil Procedure Act.
(3) Claims referred to in paragraph 1 of this section may be brought together with claims for the protection of other rights to be determined in civil proceedings if all those claims are interrelated and if the same court has jurisdiction based on subject matter in respect of them, regardless of whether such claims fall to be examined in regular or special civil proceedings, except in cases of disturbance of possessions. In that case, regulations relevant to the type of dispute in question shall apply, unless otherwise provided by this Act.
(4) ...”
37. The relevant part of the Report on the Implementation of the Constitutional Act on the Rights of National Minorities and the Expenditure of Means Allocated in the State Budget of the Republic of Croatia for 2009 for the Needs of National Minorities (Izvješće o provođenju Ustavnog zakona o pravima nacionalnih manjina i o utrošku sredstava osiguranih u državnom proračunu Republike Hrvatske za 2009. godinu za potrebe nacionalnih manjina), which the Government of the Republic of Croatia submitted to the Croatian Parliament on 1 July 2010, reads as follows:
“To date, the Republic of Croatia has concluded four international agreements [concordats] with the Holy See ...
...
The Government of the Republic of Croatia also concluded six agreements on issues of common interest with churches and religious communities, and in this way has regulated relations with another 15 churches and religious communities.
...
Churches which have regulated relations with the State of Croatia:
1. receive regular annual financial support,
2. can teach religion courses in schools, and teach religion in nurseries,
3. can celebrate marriage in religious form with the effects of a civil marriage.
...
All other religious communities have the right to provide pastoral care in medical and social-welfare institutions, prisons and penitentiaries, as well as in the armed forces.”
38. The Government of Croatia has to date concluded agreements on issues of common interest, as envisaged in section 9(1) of the Religious Communities Act, with the following religious communities:
- the Serbian Orthodox Church, on 20 December 2002 (Official Gazette, no. 196/2003);
- the Islamic Community in Croatia, on 20 December 2002 (Official Gazette, no. 196/2003);
- the Evangelical Church in the Republic of Croatia and the Reformed Christian Church in Croatia, on 4 July 2003 (Official Gazette, no. 196/2003);
- the Evangelical (Pentecostal) Church in the Republic of Croatia (together with the associated Church of God in the Republic of Croatia and the Alliance of Pentecostal Churches of Christ in the Republic of Croatia), the Christian Adventist Church in the Republic of Croatia (together with the associated Seventh-day Adventists Reform Movement) and the Alliance of Baptist Churches in the Republic of Croatia (together with the associated Church of Christ), on 4 July 2003 (Official Gazette, no. 196/2003);
- the Bulgarian Orthodox Church, the Croatian Old Catholic Church and the Macedonian Orthodox Church, on 29 October 2003 (Official Gazette, no. 196/2003), amended on 23 September 2004 (Official Gazette, no. 141/2004); and
- the Jewish (Religious) Community Beth Israel in Croatia, on 24 October 2008.
39. Relations with the Catholic Church are regulated by four concordats concluded with the Holy See:
- the Agreement between the Holy See and the Republic of Croatia on Legal Issues (Official Gazette – International Agreements, no. 3/1997);
- the Agreement between the Holy See and the Republic of Croatia on Pastoral Care of Catholic Believers [who are] Members of the Armed Forces and the Police (Official Gazette – International Agreements, no. 2/1997),
- the Agreement between the Holy See and the Republic of Croatia on Cooperation in the Field of Education and Culture (Official Gazette – International Agreements, no. 2/1997),
- the Agreement between the Holy See and the Republic of Croatia on Economic Issues (Official Gazette – International Agreements, no. 18/1998).
40. According to the last census of 2001 the Bulgarian Orthodox Church has eight members, the Croatian Old Catholic Church 303 and the Macedonian Orthodox Church 211.
VIOLATED_ARTICLES: 14
9


ITEMID: 001-24031
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: HARABIN v. SLOVAKIA
IMPORTANCE: 1
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Štefan Harabin, is a Slovakian national who was born in 1957 and lives in Bratislava. He was represented before the Court by Mrs E. Ľalíková, a lawyer practising in Bratislava. The respondent Government were represented by their Agent, Mr P. Vršanský, succeeded by Mr P. Kresák as from 1 April 2003.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 11 February 1998 the National Council of the Slovak Republic elected the applicant President of the Supreme Court for a five-year period.
On 16 August 2000 the Government adopted a resolution under which it initiated the revocation of the applicant’s appointment. The background for the resolution was a proposal submitted by the Minister of Justice in which the following reasons for the applicant’s removal from office were invoked.
According to the proposal, the applicant, in his speeches, attitudes and decisions, had taken several steps which cast doubt on the trustworthiness of the Supreme Court and of the judiciary as a whole.
Firstly, the applicant had failed to initiate disciplinary proceedings to dismiss J.Š. from his appointment as a judge. J.Š. was then the VicePresident of the Supreme Court and had forcibly entered premises belonging to the Ministry of Justice and had used force against a high ranking official of that Ministry in June 1999. According to the Minister’s proposal, the applicant’s behaviour in the matter had not been appropriate.
Secondly, the applicant had initiated, in September 1999, the amendment of several laws concerning the judiciary. Those proposals clearly exceeded the legitimate interest in ensuring that the Supreme Court should have its own chapter in the State budget. If they had been approved, the President of the Supreme Court would have had the exclusive right to determine the number of judges of the Supreme Court and to decide on the assignment or transfer of judges to it. This initiative had been strongly criticised in a declaration adopted by the Council of the Association of Judges of Slovakia in October 1999. According to the declaration, the proposal was against the principle of transparency in staff matters and created the danger of making decision-making on judges’ careers much less objective. The Minister’s report concluded that the applicant had sought to obtain more power rather than to strengthen the self-administration of judges.
Thirdly, the applicant had taken into account the views expressed by organs of self-administration of judges only in cases where it suited his interests. Thus the applicant had not accepted the transfer of a judge to the Supreme Court despite the fact that it had been recommended by the Council of Judges of the Slovak Republic. On the other hand, the applicant had proposed to assign temporarily to the Supreme Court a District Court judge who clearly failed to meet the professional and moral requirements for holding a post at the Supreme Court. The Minister’s report concluded that the applicant had failed to apply correct professional and ethical criteria when proposing to fill posts at the Supreme Court.
Fourthly, the applicant had not acted in a correct manner when presenting his views on a draft amendment to the Constitution. In particular, in a letter addressed to a representative of the European Commission, the applicant had stated that, in the opinion of almost all judges of the ordinary courts, the draft amendment to the Constitution was contrary to the principle of the separation of powers and permitted interference with the independence of judges. That was contrary to the views expressed by the Council of Judges of the Slovak Republic, by the Association of Judges of Slovakia and by the National Association of Female Judges of Slovakia, those being organisations which represented a majority of judges. Furthermore, the applicant had incorrectly alleged that the whole judiciary including the Supreme Court would be ruled by a member of the Government if the Judicial Council were to be established in accordance with the draft amendment to the Constitution, whereas under the amendment the Judicial Council was to be composed of nine judges elected by judges and of another nine members, of whom three were to be appointed by the Parliament, three by the President of Slovakia and three by the Government.
The applicant’s comments on the draft amendment were “noteworthy” in that they showed that he did not understand the purpose of an amnesty in a democratic State. The report also stated that the applicant’s comments showed that the real reason for his disagreement with the draft amendment to the Constitution was the point concerning the termination of the powers of the President of the Supreme Court.
Fifthly, several cases taken up by the media had impaired the trustworthiness of the judiciary. For example, a representative of the Supreme Court was suspected of having forged an official document concerning the use of a building in which the Supreme Court had its seat. The applicant was not in a position to show that the suspicion was unsubstantiated and had frequently changed his explanation of the relevant facts. Furthermore, the applicant had failed to initiate disciplinary proceedings against a Supreme Court judge who had been treated free of charge in a spa. The applicant had taken an inappropriate initiative in the context of judicial proceedings in that he had informed the media, on his own initiative, about a Supreme Court decision and commented upon it prior to its delivery to the parties.
The Minister’s report concluded that the applicant’s actions and behaviour showed that he did not meet the professional and moral requirements for holding the post of President of the Supreme Court. In performing his duties, the applicant had laid emphasis on his material status and the strengthening of his powers rather than on professional and ethical problems of the judiciary.
The applicant filed a petition to the Constitutional Court under Article 130(3) of the Constitution. With reference to the Government’s proposal, he alleged a violation of his right to freedom of expression as guaranteed by Article 26 § 1 and also a violation of Article 30 §§ 1 and 4 of the Constitution.
On 10 October 2000 the Constitutional Court dismissed the applicant’s petition as being manifestly ill-founded. The decision stated that the Government’s proposal to revoke the applicant’s appointment as President of the Supreme Court did not amount to a violation of any of his constitutional rights. The Constitutional Court pointed out, in particular, that there was no right under the Constitution to exercise the post to which the applicant had been elected. Furthermore, there was no indication that the applicant’s right to freedom of expression or his other constitutional rights had been violated as a result of the proposal to remove him from the post since that proposal did not, as such, directly affect the applicant’s rights or his interests protected by law.
On 19 December 2000 in the National Council of the Slovak Republic the motion that the applicant’s appointment be revoked was defeated by 62 votes to 60, with 15 abstentions.
Following the entry into force, on 1 July 2001, of a constitutional amendment the post of President of the Supreme Court was to be filled in accordance with Article 145(3) of the Constitution. The applicant was a successful candidate for that post in an election held by the Judicial Council on 20 December 2001. Subsequently the Constitutional Court invalidated the election on the ground that the other candidate had been at a disadvantage vis-à-vis the applicant. The subsequent elections having not resulted in the appointment of the President of the Supreme Court pursuant to Article 145(3) of the Constitution, the applicant held the post of President of the Supreme Court until February 2003 when the term for which he had been appointed expired. Since then he has performed the duties of a Supreme Court judge.
The following provisions of the Constitution, as in force at the relevant period, are pertinent in the present case.
Article 26(1) guarantees the freedom of expression and the right to information. Paragraph 2 of Article 26 guarantees to everyone the right to express his or her views orally, in writing, through the press, pictures or by other means and to freely seek, receive and impart ideas and information. Paragraph 3 of Article 26 prohibits censorship. Under paragraph 4 of Article 26, freedom of expression and the right to seek and impart information may be restricted by law where it is necessary in a democratic society for the protection of rights and freedoms of others, in the interest of state security or public order or for the protection of public health and morals.
Under Article 30(1), citizens have the right to participate in the administration of public affairs either directly or by electing their representatives. Paragraph 4 of Article 30 entitles citizens to have access to public posts on equal terms.
Under Article 145(1), as in force until 30 June 2001, judges were elected by the National Council of the Slovak Republic upon the Government’s proposal for a four-year period. After the expiry of that period the National Council elected judges, upon the Government’s proposal, for an indefinite period.
Paragraph 2 of Article 145, as in force until 30 June 2001, provided that the President and Vice-Presidents of the Supreme Court were to be elected by the National Council from the judges of the Supreme Court for a fiveyear period. Such posts could not be held by the same persons for more than two consecutive periods of five years.
Under Article 147(1) as in force until 30 June 2001, the appointment of a judge could be revoked by the National Council of the Slovak Republic either after his or her final conviction for an intentional criminal offence or when he or she had committed a disciplinary offence which was incompatible with the office of a judge. Paragraph 3 of Article 147, as in force until 30 June 2001, provided that, prior to revoking the appointment of a judge, the National Council had to ask the competent disciplinary court for an opinion.
Following an amendment to the Constitution, the following relevant provisions entered into force with effect from 1 July 2001.
Article 141a(1) provides for establishment of the Judicial Council, composed of the President of the Supreme Court, eight judges elected by the judges who may revoke their appointment, and another nine members, three of whom are appointed by the Parliament, three by the President of the Slovak Republic and three by the Government. Under paragraph 4(c) of Article 141a, the Judicial Council has the right to propose to the President of Slovakia the names of persons to be appointed to the posts of President and Vice-President of the Supreme Court and to call for their removal from office.
Pursuant to Article 145(3), the President and Vice-President of the Supreme Court are appointed by the President of the Slovak Republic, upon the proposal of the Judicial Council, from among the judges of the Supreme Court for a five-year period. Prior to the expiry of that period the President of the Slovak Republic can revoke the appointments to the posts of President and Vice-President of the Supreme Court for any of the reasons laid down in Article 147 of the Constitution.
Act No. 80/1992 governs, inter alia, the State administration of courts, which consists in setting up necessary conditions for the proper administration of justice without interfering with the independence of the judiciary.
Under Section 8(1), the central authority charged with State administration of justice is the Ministry of Justice. Paragraph 2 of Section 8 provides that the other authorities in charge of State administration of Justice are the President and the Vice-President of the Supreme Court and the presidents and vice-presidents of Regional Courts and District Courts.
Pursuant to Section 9(2), State administration of the Supreme Court is carried out by the Ministry of Justice through the President of the Supreme Court.
Section 12(1)(d) provides that the Ministry of Justice organises, directs and controls the State administration of courts by their presidents.
Pursuant to Section 13(1), the President of the Supreme Court carries out the State administration of that court in that he or she (a) ensures the functioning of the Supreme Court in terms of personnel and organisation, being responsible in particular for filling the expert and other posts with duly qualified staff and for dealing with personnel matters relating to judges and the other staff of the court, (b) ensures the functioning of the Supreme Court from the economic, material and financial point of view and (c) attends to the professional education of judges and other staff members of the Supreme Court.
Under paragraph 2 of Section 13, the President of the Supreme Court also takes care to ensure that the dignity of judicial proceedings is respected, that the rules of judicial ethics are complied with and that proceedings before the Supreme Court are conducted without undue delays.
Paragraph 3 of Section 13 entitles the President of the Supreme Court to initiate complaints in the interest of the law in the cases provided for by law.
According to Article 11, any natural person has the right to protection of his or her personality, in particular of his or her life and health, civil and human dignity, privacy, name and personal characteristics.
Pursuant to Article 13(1), any natural person has the right to request that unjustified infringement of his or her personal rights should be stopped and the consequences of such infringement eliminated, and to obtain appropriate satisfaction.
Article 13(2) provides that in cases where the satisfaction obtained under Article 13(1) is insufficient, in particular because a person’s dignity and position in society has been considerably diminished, the injured person is entitled to compensation for non-pecuniary damage. According to paragraph 3 of Article 13, when determining the amount of such compensation the courts have to take into account the seriousness of the prejudice suffered by the person concerned and also the circumstances under which the violation of that person’s rights occurred.


ITEMID: 001-106999
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: L.Z. v. SLOVAKIA
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria
TEXT: 1. The applicant, Mr L. Z., is a Slovak national who was born in 1958 and lives in Prague, in the Czech Republic. He was represented before the Court by Mr D. Strupek, a lawyer practising in Prague. The applicant has requested anonymity and the Court has granted this request, under Rule 47 § 3 of the Rules of Court.
2. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Mrs M. Pirošíková.
The facts of the case, as submitted by the parties, may be summarised as follows.
3. The applicant is of Jewish origin and works as a social and human rights worker and psychologist. He has been living in the Czech Republic since 1983.
4. Varín is a village in northern Slovakia with population of around 3,500 inhabitants.
5. On 4 November 1993 Varín Municipal Council (“the municipal council”) passed a resolution changing the name of a street in the village to Dr. Jozef Tiso Street.
6. After protests by two local organisations, the resolution was confirmed by a second resolution of the municipal council on 28 December 1993. The resolution reads as follows:
“Varín Municipal Council, by way of resolution No. 224/1993 of 28 December 1993, adopted a change in the name of the street ... to Dr. Jozef Tiso Street (ulica Dr. Jozefa Tisa)....”
7. According to an official statement of the Historical Institute of the Slovak Academy of Sciences of 17 May 1999 sent to the applicant upon his own request,
“... J. Tiso was the head of State between 1939 and 1945 who collaborated with Nazi Germany and waged war against the [Allied] States. Moreover, under his leadership a totalitarian regime of a fascist character was established, which, inter alia, caused the violent deaths of tens of thousands of its citizens. J. Tiso, as the Prime Minister [and] President of the State and as the President of the sole governing [party], the Hlinka Slovak People’s Party, as the top commander of the State’s army and as the top commander of the Hlinka Guard, bears the greatest part of the political, legal and moral responsibility for all the events in the Slovak State during the war.”
8. On 21 February 1994 the municipal council asked the Street Naming Committee of the Žilina District Office to submit an official opinion on the change of the street’s name.
9. In its opinion of 12 April 1994 the Committee did not recommend naming the street after Dr. Jozef Tiso, “since the personality of Dr. Tiso has not yet been historically assessed”.
10. In 1995 the applicant unsuccessfully sought to initiate criminal proceedings. In 1998 he brought a civil claim, mainly seeking the quashing of the municipal council’s resolution, renaming of the street and payment of symbolic compensation. Both his civil claim and his subsequent constitutional complaints against the decisions of the prosecution service and the courts were dismissed. The details are described below.
11. In 1995 the applicant unsuccessfully sought to initiate criminal proceedings concerning the adoption of the above-mentioned municipal resolution on 28 December 1993. In 1996 the applicant also unsuccessfully sought to initiate criminal proceedings against the police investigator who had dismissed the applicant’s criminal complaint. Both complaints were dismissed by the Žilina District Prosecutor’s Office.
12. On 11 March 1996 the District Prosecutor’s Office, exercising its power to review the lawfulness of actions and decisions of public authorities, notified the municipal council that the renaming of the street was in breach of section 8(3) of the Territorial and Administrative Organisation of the Slovak Republic Act. That section provides that the names of streets are to be determined by municipal councils after taking into account an opinion of the Street Naming Committee established by the District Office.
13. By letter of 12 April 1994 the municipal council informed the District Prosecutor’s Office that its letter had been discussed by the municipal council.
14. On 11 December 1998 the applicant lodged a petition with the Žilina District Court seeking a ruling declaring that the naming of the street after Dr. Jozef Tiso was in breach of the Slovakian Constitution. He requested that the relevant part of the municipal council’s resolution be declared null and void and be quashed, that the street be renamed and that the municipal council be ordered to pay symbolic compensation of 1 Slovakian koruna (SKK) to all registered churches in Slovakia.
15. On 10 December 1999 the District Court invited the applicant to provide further and more specific particulars of claim.
16. On 21 December 1999 the applicant amended his claim with regard to the renaming of the street and changed it with regard to the compensation sought by requesting that a symbolic sum of SKK 16 be paid to him.
17. On 13 August 1999 the District Court hived off the part of the applicant’s claim concerning the validity of the resolution to separate proceedings. On 27 March 2000 the District Court dismissed these proceedings, holding that it had no jurisdiction to examine the legality of the municipal council’s resolution and transferred the case to the Constitutional Court.
18. By letter of 6 February 2001 the Constitutional Court returned the case file to the Žilina District Court without having made a decision. It stated that proceedings before the Constitutional Court could not be initiated by a case being transferred to it by an ordinary court.
19. On 21 March 2001 the Žilina District Court informed the applicant of the Constitutional Court’s letter and concluded that the decision to dismiss the proceedings concerning the validity of the resolution was final and the case file would be archived.
20. Meanwhile, on 6 July 2000, the Žilina District Court had informed the applicant that his claim for the renaming of the street and for payment of compensation fell to be determined within the framework of the protection of his personal integrity. It transferred the case to the Levice District Court, as the matter lay within that court’s territorial jurisdiction.
21. On 17 April 2001 the Levice District Court dismissed the proceedings and transferred the case to the Constitutional Court, holding that it had no jurisdiction to deal with the case.
22. On 7 June 2001 the applicant appealed against the decision.
23. On 11 June 2002 the Levice District Court amended its decision of 17 April 2001, in that it hived off the applicant’s claim for payment of SKK 16 in compensation to a separate set of proceedings.
24. On 31 December 2002 the Nitra Regional Court quashed the firstinstance decision to dismiss the proceedings and to transfer the case to the Constitutional Court and returned the case to the Levice District Court. It held, inter alia, that proceedings before the Constitutional Court could not be started by dismissing and transferring a civil case pending before a civil court.
25. On 26 September 2003 the District Court asked the applicant to provide further and more specific particulars of claim, namely to justify it and to adduce evidence in support of his claim within fifteen days.
26. On 31 October 2003 the applicant amended his claim. He argued that the renaming of the street and the existence of a street bearing the name of Dr. Jozef Tiso had violated his right to life, personal freedom and human dignity and had damaged his reputation. He felt ashamed of a municipality which had promoted fascism and had honoured a war criminal. He further stated that he was worried about fundamental human rights and freedoms and democracy in Slovakia being jeopardised. He added that he identified himself with Slovakia and he could not be indifferent towards any of its citizens who might become a victim of the consequences of the promotion of fascism.
27. On 22 April 2004 at an oral hearing the District Court joined the proceedings concerning the renaming of the street after Dr. Jozef Tiso and those seeking the payment of compensation. The applicant further specified his claim. The applicant stated, inter alia, that his aim had been to prevent a repetition of the murder of tens of thousands of people in the future. He claimed that he had been mocked by some of his friends as a result of the public act in issue.
28. On 27 April 2004 the District Court dismissed the applicant’s claim.
29. As to the applicant’s arguments relating to the alleged violation of his personal integrity, the District Court held:
“The fact that a street in the village of Varín was given the name of Dr. Jozef Tiso, which was decided upon by the municipal council and in consequence of which the street exists, cannot be considered as an action which is objectively capable of affecting the applicant’s right to life, his personal freedom, his reputation and dignity. This act (the decision of the municipal council) is not aimed, concretely and directly, at the applicant’s personality or at his personal integrity. The claimant did not prove that the defendant had unlawfully infringed his right to protection of his personality or infringed his personal integrity. The claimant did not prove that, as a consequence of the defendant’s action, he suffered any damage that should be compensated.”
30. On 19 July 2004 the applicant appealed.
31. At a hearing on 12 October 2004 the Regional Court upheld the District Court’s judgment.
32. On 7 January 2005 the applicant appealed on points of law. He argued that he had not been allowed to comment on all the evidence and statements led by the defendant and that he had been prevented from presenting his arguments by the trial court.
33. On 17 June 2005 the Supreme Court rejected the appeal on points of law as inadmissible. The Supreme Court held that the minutes of the hearing before the Regional Court showed that the applicant had been given an opportunity to respond to the defendant’s arguments. It further held that the only evidence before the court had been a recording of a television programme produced by the applicant.
34. On 8 February 2005 the applicant complained before the Constitutional Court under Article 127 of the Constitution that the relevant part of the resolution of the municipal council, the decisions of the Žilina District Police Investigation Office and the Žilina District Prosecutor’s Office to dismiss the applicant’s complaints (see paragraph 12 above), the conduct of the Žilina District Court and the conduct and decisions of the Levice District Court and of the Nitra Regional Court had, inter alia, violated his rights under Articles 6 § 1 and 8 of the Convention.
35. On 9 June 2005 the Constitutional Court rejected the complaint relating to the municipal council’s resolution and to the conduct of the Žilina District Court as belated. The complaint relating to the decision of the Police Investigation Office and the District Prosecutor’s Office was rejected because the applicant had failed to complain to higher levels of the prosecution service. The complaint of delays in the proceedings before the Levice District Court was rejected as manifestly ill-founded, as at the time of the introduction of the constitutional complaint the proceedings had no longer been pending before the District Court. The Constitutional Court also held that it lacked jurisdiction to deal with the complaint related to the proceedings before the Nitra Regional Court, as the proceedings concerning the appeal on points of law were still pending.
36. On 13 October 2005 the applicant again complained to the Constitutional Court under Article 127 of the Constitution. He directed his complaint against the relevant part of the municipal council’s resolution, the conduct of the Žilina District Court, the conduct and decisions of the Levice District Court and of the Nitra Regional Court and the Supreme Court’s decision to dismiss the appeal on points of law.
37. On 30 November 2005 the Constitutional Court rejected the complaint relating to the municipal council’s resolution and to the District and the Regional Courts’ conduct and decisions on the grounds that it concerned a matter that was res judicata. The Constitutional Court further held that the Supreme Court’s decision had been adequately reasoned and had not been arbitrary. The complaint related to the Supreme Court’s decision was therefore dismissed as being manifestly ill-founded.
38. On 25 January 2006 the applicant complained to the Constitutional Court for the third time, directing his complaint exclusively against the Supreme Court’s decision.
39. On 20 June 2006 the Constitutional Court rejected the complaint as inadmissible on the grounds that the matter was res judicata by force of its earlier decision.
40. According to Article 127, the Constitutional Court shall decide on complaints against final decisions of central and local State administrative bodies and municipal bodies which are claimed to have infringed fundamental rights and freedoms, unless the protection of such rights and freedoms falls within the jurisdiction of a different court.
41. Section 8(2) provides that streets shall be named after objects, natural phenomena, significant events, towns, deceased persons and so forth, having regard to the history of the relevant municipality and its surroundings. The names of living persons, names which are too long, which are identical to the name of another street in the municipality, which offend moral, religious and/or national feelings, which are linguistically incorrect, which are inappropriate with regard to the historical development of the municipality, its wards or its surroundings, are impermissible as street names.
42. Subsection 3 of section 8 provides that names of streets shall be decided by a municipal council after consulting with the municipality’s citizens and after obtaining the opinion of the Street Naming Committee established by the District Office.
43. The right to the protection of a person’s dignity, honour, reputation and good name is guaranteed by Articles 11 et seq. of the Civil Code.
44. According to Article 11, any natural person has the right to the protection of his or her personality, in particular of his or her life and health, civil and human dignity, privacy, name and personal characteristics.
45. According to Article 13 § 1, any natural person has the right to request that an unjustified infringement of his or her personality rights be stopped and the consequences of such infringement eliminated, and to obtain appropriate compensation.
46. Article 13 § 2 provides that, in cases where the compensation obtained under Article 13 § 1 is insufficient, in particular because a person’s dignity and position in society has been considerably diminished, the injured person is entitled to compensation for non-pecuniary damage.
47. In accordance with established practice, a claimant has to prove that the alleged infringement was objectively capable of affecting his or her rights under Article 11 of the Civil Code.
48. The Committee on the Elimination of Racial Discrimination, established under Article 8 of the International Convention on the Elimination of All Forms of Racial Discrimination, adopted an opinion in the case of Steven Hagan v. Australia, CERD/C/62/D/26/2002. In 2002 the Australian petitioner complained before the Committee that the grandstand of an important sporting ground in Toowoomba, Queensland, Australia, where the applicant lived, was named the E.S. “Nigger” Brown Stand.
49. The applicant contended that the term “nigger” was one of the most racially offensive words in the English language.
50. On 20 March 2003 the Committee held that use and maintenance of the term “can at the present time be considered offensive and insulting, even if for an extended period it may not have necessarily been so regarded.”
51. The Committee stated that the Convention on the Elimination of All Forms of Racial Discrimination “must be interpreted and applied taking into account the circumstances of contemporary society. In this context, the Committee considers it to be its duty to recall the increased sensitivities in respect of words such as the offending term appertaining today.”