ITEMID: 001-79568
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF STANDARD VERLAGSGESELLSCHAFT MBH (No.2) v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: No violation of Art. 10
JUDGES: Christos Rozakis
TEXT: 6. The applicant company is the owner of the daily newspaper “Der Standard”.
7. The Region of Carinthia (Land Kärnten) is the majority shareholder of the Carinthian Electricity Corporation (Kärntner Elektrizitäts-Aktiengesellschaft - “the KELAG”).
8. On 16 June 1999 the KELAG invited all shareholders to the general meeting on 9 July 1999. One item on the agenda was the dismissal and re-election of the corporation's supervisory board (Aufsichtsrat).
9. For the meeting of the Carinthian Regional Government (Landesregierung) of 6 July 1999, Mr Pfeifenberger, the official dealing with financial matters at the material time, prepared a motion inviting the Regional Government to nominate specific persons to the corporation's supervisory board.
10. He retracted this motion before the meeting as, at the request of Mr Haider, Regional Governor (Landeshauptmann) of Carinthia, he had received a legal expert opinion issued by the expert Mr Q. According to this opinion, the Region of Carinthia had no right to nominate the members of the KELAG supervisory board as the members had to be elected. The representative of the Region of Carinthia could propose candidates and exercise the voting right in the general meeting of the KELAG without a prior decision by the Regional Government.
11. Mr Haider had further informed Mr Pfeifenberger that the Legal Department dealing with constitutional matters at the Carinthian Regional Government Office had approved this way of proceeding. Mr Haider further commissioned an expert opinion by the Legal Department. This opinion, issued on 2 August 1999, stated that an interpretation of the relevant provisions did not lead to an unequivocal result.
12. In the meantime, Mr Pfeifenberger – despite the protest of the socialist members of the Regional Government – gave authority to Mr Haider to represent the Region of Carinthia in the general meeting of the KELAG. Mr Haider subsequently represented the Region of Carinthia at the said general meeting on 9 July 1999 and exercised the voting right without having previously obtained a decision by the Regional Government.
13. On 14 July 1999, at the request of the Austrian Social Democratic Party (“the SPÖ”) Mr S, a professor of law of the Graz University, issued a further expert opinion of some seven pages concerning the question of “nomination of members to the KELAG's supervisory board by the Regional Governor of Carinthia”.
14. This expert opinion came to the conclusion that the election of the supervisory board of the KELAG by the Regional Governor without a previous decision by the Regional Government was not in accordance with federal constitutional law, regional constitutional law and the Regional Government's Rules of Procedure. The opinion finally mentioned the possibility of impeachment of members of the Regional Government before the Constitutional Court by majority vote of the Regional Parliament (Landtag) under Article 142 of the Federal Constitution (Bundes-Verfassungsgesetz) for having culpably breached the law. The Constitutional Court's decision in impeachment proceedings consisted of either the exoneration of the official in question or a finding against him or her which implied dismissal of the person from office. The possibility for the Constitutional Court to limit its judgment in the event of minor infringements to a finding that there has been a breach of the law would not exist in the present case as impeachment had to be filed under Article 142 § 2 lit d which did not provide for this alternative.
15. On 16 July 1999 the applicant company published an article on its front page of “Der Standard” which read as follows:
“Haider has breached the Constitution
According to an expert opinion commissioned by the SPÖ at the Graz University, the Regional Governor Jörg Haider has committed a 'breach of law' when appointing the supervisory board of the KELAG. His handling of the Regional Government's Rules of Procedure would be 'illicit, illegal and unconstitutional'. The ÖVP [Austrian People's Party] nevertheless does not want to support an impeachment. It invites Haider to correct the KELAG decisions concerning the personnel, which the FPÖ [Austrian Freedom Party] categorical refuses: 'We refuse to be blackmailed'.”
16. The article continued on page 8 under the same heading with the subtitle: “Expert opinion of professor in Graz accuses the Regional Governor of deliberate misguidance”. It stated as follows:
“The Carinthian Regional Governor, Jörg Haider, by acting on his own when appointing the members of the KELAG supervisory board, has clearly committed a 'breach of the laws and the Constitution'. This is the conclusion reached by A.S [name in full], professor at the Graz University, in his expert opinion on constitutional matters which had been commissioned by the Carinthian SPÖ. Haider, by acting on his own authority, has violated the Carinthian Government's Rules of Procedure and has, thus, breached the law and the Constitution. The expert opinion mentions as an aggravating factor that Haider has 'deliberately mislead the Regional Government and ignored the Regional Constitution and the Regional Government's Rules of Procedure'. According to the expert opinion it is therefore possible to institute impeachment proceedings against Haider. If the Constitutional Court convicted Haider, he would be threatened with dismissal from office. The SPÖ leader Helmut Manzenreiter has now given Mr Haider an ultimatum: either the supervisory board should be appointed afresh by the Regional Government as a whole or there should be a tripartite agreement on transforming Kelag into a holding company. Otherwise, the SPÖ would institute impeachment proceedings against Mr Haider before the elections to the National Assembly. Mr Manzenreiter also called on the ÖVP not to 'cover up' Mr Haider's breach of the law. In the Regional Parliament the FPÖ reacted vehemently to the report. The leader of the FPÖ's parliamentary group, Martin Strutz, announced that a second opinion would be commissioned. Mr Haider himself could not hide his anxiety. He leaned back in a relaxed fashion only when the leader of the ÖVP's parliamentary group, Klaus Wutte, made clear that the ÖVP would not support his impeachment. Although the ÖVP intends to await the findings of an 'independent' expert opinion, Mr Wutte nonetheless hinted at the party's strategy: 'Not punishment but rectification of Haider's breach of the law.' In so doing, he both foiled his colleague Georg Wurmitzer and confirmed the viewpoint that there is a 'tacit coalition' between the ÖVP and the FPÖ.'
17. The article was followed by a further text in a small box headed “[The] Constitution stands above stock corporation law” (Verfassung steht über Aktienrecht). This text explained that Mr Pfeifenberger had prepared an act of Government (Regierungsakt) which Mr Haider had, however, retracted as being an “error”. The expert opinion had found that this conduct amounted to deliberate misguidance of the Regional Government. The article further stated that the expert A.S. did not accept Mr Haider's reference to stock corporation law.
18. On 29 July 1999 Mr Haider instituted proceedings for forfeiture (Einziehung) of the article and publication of the judgment under Section 33 of the Media Act (Mediengesetz) with the St. Pölten Regional Court (Landesgericht).
19. On 12 December 2000 the Regional Court found that the article at issue, by stating that Mr Haider had deliberately mislead the Regional Government and had acted in breach of the Carinthian Government's Rule of Procedure and the Regional Constitution, fulfilled the elements of the offence of defamation (üble Nachrede) under Article 111 of the Criminal Code (Strafgesetzbuch). It, therefore, ordered the applicant company to black out the impugned statements in the issues still to be disseminated and the publication of the judgment under sections 33 and 34 of the Media Act. It further ordered the applicant company to pay the costs of Mr Haider's counsel.
20. At the trial the court heard the counsel of the applicant company, Mr Haider and Mr Pfeifenberger. It dismissed the applicant company's request to hear all other members of the Regional Government as being irrelevant for the proceedings at issue.
21. The court considered the statements that Mr Haider had breached the Constitution, had deliberately mislead the Regional Government and had acted in breach of the law as statements of fact for which the applicant company had failed to supply sufficient proof. The court noted that there was, in particular, nothing to indicate that Mr Haider had deliberately misled the Regional Government which, in itself, was a sufficient reason for the ordered forfeiture. The fact whether or not Mr Haider had acted in breach of the Constitution was a matter which had to be decided by the Constitutional Court.
22. The applicant company appealed against this judgment. It submitted inter alia that the statements at issue were value judgments, based on the facts established by the expert opinion of the professor of the Graz University, and contributed to the discussion of a question of public interest.
23. On 3 December 2001 the Vienna Court of Appeal (Oberlandesgericht), having the expert opinion of Mr S. before it as evidence, dismissed the applicant's appeal. It noted that the expert opinion had to be considered as an admissible legal assessment of uncontested facts. The article at issue had, however, not simply reproduced the opinion given by the expert but had used it for an independent attack on Mr Haider's reputation. The court noted in this regard that the article had not placed the expert opinion in its context, namely that of a legal dispute, but had presented it as an irrevocable verdict on Mr Haider. The court referred in particular to the wording of the article's headings. It further noted that the article had not published any comment of Mr Haider and had not mentioned the existence of the opinion issued by the other expert Q. Furthermore, the article contained statements which were not supported by the expert opinion, namely that Mr Haider had deliberately misled the Regional Government and the reference to the possible impeachment of Mr Haider. The court noted in the latter regard that the expert opinion had merely mentioned the abstract possibility of impeachment of a member of the Regional Government who, in the opinion of the majority of the members of the Regional Parliament, had culpably breached the law. The court finally noted that the Regional Court's order to black out the impugned statements did not replace but complemented an order of forfeiture of the relevant issues. This judgment was served on the applicant company's counsel on 21 January 2002.
24. On 4 December 2001 Mr Haider brought injunction proceedings under Article 1330 of the Civil Code (Bürgerliches Gesetzbuch) against the applicant company.
25. On 19 June 2002 the Vienna Commercial Court (Handelsgericht), referring to the judgments of the courts in the proceedings under the Media Act, granted the injunction and ordered the applicant to revoke the statements that Mr Haider, by appointing the members of the KELAG supervisory board, had deliberately misled the Regional Government and had acted in breach of the Regional Government's rules of procedure and the Regional Constitution. It further ordered the applicant company to pay the costs of Mr Haider's counsel.
26. The court dismissed the applicant company's argument that it could not be held responsible for the shortcomings of the article at issue since that article had been written by a journalist who was not trained in law. The journalist had relied on press releases prepared by the Socialist Party which summarised the expert opinion incorrectly. The court found that the applicant company had not complied with its obligation of journalistic diligence as it had failed to consult the available expert opinion.
27. On 20 November 2002 the Vienna Court of Appeal (Oberlandesgericht) dismissed the applicant company's appeal. This decision was served on the applicant company's counsel on 4 December 2002.
28. Section 6 of the Media Act provides for the strict liability of the publisher in cases of defamation; the victim can thus claim damages from him. In this context “defamation” has been defined in Article 111 of the Criminal Code (Strafgesetzbuch), as follows:
“1. Anybody who, in such a way that it may be noticed by a third person, attributes to another a contemptible characteristic or sentiment or accuses him of behaviour contrary to honour or morality and such as to make him contemptible or otherwise lower him in public esteem shall be liable to imprisonment not exceeding six months or a fine ...
2. Anyone who commits this offence in a printed document, by broadcasting or otherwise in such a way as to make the defamation accessible to a broad section of the public, shall be liable to imprisonment not exceeding one year or a fine ...
3. The person making the statement shall not be punished if it is proved to be true. In the case of the offence defined in paragraph 1 he shall also not be liable if circumstances are established which gave him sufficient reason to believe that the statement was true.”
29. Section 33 § 2 of the Media Act reads as follows:
“Forfeiture shall be ordered in separate proceedings at the request of the public prosecutor or any other person entitled to bring claims if a publication in the media satisfies the objective definition of a criminal offence and if the prosecution of a particular person cannot be secured or if conviction of such person is impossible on grounds precluding punishment, has not been requested or such a request has been withdrawn. If no punishment can be imposed in case of the offender having proved the truth, the defence of truth shall also be available to the owner (publisher) of the media product in question being the interested party ...”.
30. Section 34 of the Media Act deals with the publication of a judgment (Urteilsveröffentlichung). It states inter alia that a criminal judgment concerning a media offence has, at the request of the prosecution, to order the publication of those parts of the judgment which are necessary to inform the public about the offence and the conviction. At the request of the prosecution, the publication of a judgment has to be ordered in separate proceedings, if statements falling within the objective definition of an offence have been made in the media and the prosecution of a specific person is not possible.
31. Section 1330 of the Civil Code (Allgemeines Bürgerliches Gesetzbuch) provides as follows:
“1. Anybody who, due to defamation, suffered a damage or loss of profit, may claim compensation.
2. The same applies if anyone is disseminating facts, which jeopardize another person's reputation, gain or livelihood, the untruth of which was known or must have been known to him. In this case there is also a right to claim a revocation and the publication thereof...”
NON_VIOLATED_ARTICLES: 10


ITEMID: 001-102955
LANGUAGEISOCODE: ENG
RESPONDENT: DNK
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF P.K. v. DENMARK
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;No violation of Art. 3 (in case of expulsion to Sri Lanka)
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 5. The applicant was born in 1945 in Sri Lanka. He is of Tamil ethnicity. Currently he lives in a centre for asylum seekers in Denmark.
6. On 18 May 2007, with a valid passport and a Sri Lankan ID card, the applicant entered Denmark and requested asylum. His eldest son, his daughterin-law, his grandchild and his brother-in-law already lived there and had permanent residence permits.
7. According to an asylum registration report of 23 May 2007 the applicant was born and grew up in the north of Sri Lanka. His wife died in 1978 and his two sons, born in 1975 and 1977, were brought up by their maternal grandmother. In 1995 the applicant and his eldest son moved to a refugee camp. They stayed there until 1998, when the eldest son was sent out of the country and the applicant went to Colombo. The applicant stayed in Colombo until 2002. Thereafter he lived in Jaffna. On 17 May 2007, with the help of an agent, he went by plane to Denmark. The agent had picked him up at the airport in Copenhagen and driven him to a centre where he could request asylum. He could not explain why he was in possession of a train ticket issued on 28 April 2007 for the town where his brother-in-law lived. The applicant wanted to live in Denmark with his son. It was better than living in Sri Lanka. The applicant had not had contact with his youngest son since 1995 and his brother remained in Sri Lanka.
8. In an asylum application form of 31 May 2007, the applicant added that while staying in the refugee camp his eldest son had been arrested five times and the applicant had been arrested twice. To leave the camp it had been obligatory to obtain permission from the military. In 1998 the applicant helped his eldest son leave the country. While in Colombo the applicant was arrested and detained three times by the authorities in order to check whether he had permission to stay there. When a peace agreement was concluded in 2002, the applicant went to Jaffna to live with his brother. The applicant's nephew in Jaffna had been killed by the authorities on 14 November 2006 because he was suspected of being an LTTE member. Thereafter the applicant was constantly harassed by the military forces and he also had problems with the LTTE.
9. According to an interview report of 29 November 2007 prepared by the Danish Immigration Service (Udlændingestyrelsen, now Udlændingeservice), the applicant stated that he had not been politically active or member of any political party or organisation. He had no previous convictions and had not been detained, charged, arrested or imprisoned, and was not a wanted person in his country of origin. In 1995 he wanted to get away from north Sri Lanka due to unrest there. He and his eldest son had to live in a refugee camp because they were unable to obtain an entry permit for Colombo. In February 1998 they received the entry permit and entered Colombo. At the end of 1998 the applicant's son went to Denmark. Thereafter, the applicant lived on the money his son sent him. Between 2002 and 2005 the applicant could freely travel between Colombo and Jaffna. He lived permanently in an apartment in Colombo, but often travelled to Jaffna. His brother died from an illness and during the last two years in Sri Lanka the applicant lived with his brother's widow and five children to save up money and to be with his family until his departure. After the nephew was killed, the military forces came to the house seven or eight times and interviewed the applicant about the LTTE. The military was mainly looking for his brother's other children, who were young, while he was an old man. He wanted to get away and live in peace with his son in Denmark. He had not had any contact with anybody in his country since his departure.
10. On 20 December 2007 the applicant's request for asylum was refused by the Immigration Service, which found that the applicant failed to fulfil the criteria under section 7 of the Aliens Act (Udlændingeloven), notably because his relationship with the LTTE was so remote that he would not be of sufficient interest to the authorities or in real and concrete danger of being subjected to treatment contrary to Article 3 of the Convention upon return to Sri Lanka.
11. The applicant appealed to the Refugee Appeals Board (Flygtningenævnet) before which an oral hearing was held on 31 March 2008. It appears that the applicant maintained that his brother had moved to India (and not died from an illness as previously stated). Also, the applicant explained that he had in fact seen the nephew being shot. The other people in the village and the applicant's sister-in-law reported to the LTTE who had informed the authorities about the nephew's activities, and consequently the informer, a woman, was killed by the LTTE. The Refugee Appeals Board upheld the decision to refuse to grant the applicant asylum on the same day. It attached importance to the applicant's statement that the visits by the authorities concerned the young people of the household, and found that the applicant was not himself an object of interest to the authorities.
12. On 23 June 2008 the applicant's request for a residence permit on humanitarian grounds under section 9 b, subsection l, of the Aliens Act was refused by the Ministry of Refugee, Immigration and Integration Affairs. In its decision the Ministry took account, inter alia, of the applicant's age and health and found that, according to the information available, the applicant did not suffer from any physical or mental illness of a very serious nature, and that no circumstances otherwise provided any basis for granting a residence permit on humanitarian grounds.
13. On 14 November 2008 the Danish Refugee Council (Dansk Flygtningehjælp), an NGO, requested that the Refugee Appeals Board reopen the case. It referred to the applicant's previous explanations and the general deterioration of the security situation in Sri Lanka. It also added that, according to the applicant's eldest son, it was in fact the applicant who had reported to the LTTE who it was that had informed the authorities on the nephew's membership. Allegedly, the authorities were therefore interested in the applicant. The eldest son had also informed the applicant's representative that the killed nephew's brother had stated that the authorities were looking for the applicant after his departure. Moreover, the eldest son had been granted asylum status in Denmark due to his affiliation with the LTTE and because he had been tortured during an investigation in 1998. Thus, according to the applicant's eldest son, the applicant had been detained because of him.
14. On 14 November 2008, on the applicants' behalf, the Danish Refugee Council also submitted a letter to the Court of Human Rights requesting that it stay the applicants' deportation.
15. On 17 November 2008, the Court of Human Rights decided to apply Rule 39 of the Rules of Court, indicating to the Government that it was in the interests of the parties and the proper conduct of the proceedings that the applicant should not be expelled to Sri Lanka pending the Court's decision.
16. Consequently, on 19 November 2008 the Refugee Appeals Board extended the time-limit for the applicants' departure until further notice.
17. On 9 January 2009 the Refugee Appeals Board again refused to reopen the applicants' asylum case finding that no essential new information or aspects had been submitted. It rejected the information added by the applicant's son as fabricated for the occasion.
18. On 16 June 2009 the Refugee Appeals Board decided to suspend the examination of asylum cases concerning ethnic Tamils from northern Sri Lanka, including the applicant's case.
19. On 16 December 2009, on the basis of the most recent background information concerning Sri Lanka including, inter alia, a Memorandum of 26 October 2009 prepared by the Ministry of Foreign Affairs, the Refugee Appeals Board decided to review the suspended cases, including the applicant's case.
20. On 16 March 2010 the Refugee Appeals Board refused to reopen the applicant's case as it found that the most recent general background information would not lead to a revised assessment of the case. More specifically in its letter to the applicant's representative it stated as follows:
“... The Refugee Appeals Board still finds that your client's fear of the LTTE and the Sri Lankan authorities does not warrant a residence permit under section 7 of the Aliens Act. In that connection, the Refugee Appeals Board refers to the fact that your client stated during the asylum procedures that he had not been a member of or sympathised with the LTTE and that he had not been sought by or had problems with the LTTE at any time prior to his departure. He stated that the family had no contact with the LTTE while he lived with his brother. On the contrary, the LTTE supposedly avenged the murder of your client's nephew by killing the woman who had allegedly informed on your client's nephew to the authorities. The Refugee Appeals Board thus finds itself unable to accept the supposition that your client has outstanding issues with the LTTE which, in fact, was defeated in May 2009. Your client has also referred to fear of persecution by the Sri Lankan authorities. In this connection, the Refugee Appeals Board refers to the fact that during the asylum procedures your client stated that personally he was not an object of interest to the authorities, that he was solely questioned about his knowledge of other LTTE members in connection with the murder of his nephew which took place three or four years ago, and that personally he has not been persecuted or threatened in his country of origin. Your client also left his country of origin without any problems using his own genuine passport. Thus, the Board finds that it has not been rendered probable that your client would be of interest to the Sri Lankan authorities or suspected of supporting the LTTE. The possibility that as an ethnic Tamil from northern Sri Lanka your client risks being questioned and investigated by the authorities upon entry into his country of origin does not lead to a revised assessment of the case under asylum law. The individuals at particular risk of being detained and investigated upon entry in Colombo are young Tamils, men in particular, from northern and eastern Sri Lanka; those without ID; those not resident or employed in Colombo; and those recently returned from the West, see United Kingdom: Home Office, Report of Information Gathering Visit to Colombo, Sri Lanka 23 - 29 August 2009. Regardless of whether it is accepted as a fact that the Sri Lankan authorities have suspected your client of supporting the LTTE, it does not lead to a revised assessment. In this respect, the Refugee Appeals Board refers to the fact that it appears from the background material available to the Board that, in general, individuals who have supported the LTTE on a lower level are not of interest to the authorities. Thus, generally, only high profile members of the LTTE who are still active and wanted, or individuals wanted for serious criminal offences are of interest to the authorities, see Home Office, Operational Guidance Note, Sri Lanka, August 2009, and Home Office, Report of Information Gathering Visit to Colombo, Sri Lanka 23 - 29 August 2009. Your client has also referred to a fear of the general situation of insecurity in Sri Lanka and the fact that he is old and wants to live in Denmark where there is peace and quiet. Moreover, he has no family in his country of origin to take care of him, but he has agreed with his son living in Denmark that he can stay with the son and be provided for. As in the previous decisions in the case, the Refugee Appeals Board still finds that the general situation for ethnic Tamils in Sri Lanka is not of such nature that it in itself warrants a residence permit under section 7 of the Aliens Act. Thus, the Refugee Appeals Board fully relies on the decisions of 31 March 2008 and 9 January 2009. Against that background, the Board still finds that it has not been rendered probable that, in case of return to Sri Lanka, your client would be at concrete and individual risk of persecution as covered by section 7(1) of the Aliens Act, or that your client would be at a real risk of outrages as covered by section 7(2) of the Aliens Act. The Refugee Appeals Board further states that the Board has no authority to decide whether your client could be granted a residence permit under other provisions of the Aliens Act. Such authority lies with the Danish Immigration Service and the Ministry of Refugee, Immigration and Integration Affairs. It should be noted that your client's time-limit for departure is still postponed on the basis of the request of 18 November 2008 from the European Court of Human Rights. If your client's lawful stay in Denmark lapses, he must leave the country immediately, see section 33(1) and (2) of the Aliens Act. As appears from the decision of the Board of 31 March 2008, your client may be forcibly returned to Sri Lanka if he does not leave voluntarily, see section 32a, cf. section 31, of the Aliens Act.”
21. By virtue of section 7 of the Aliens Act (Udlændingeloven), asylum is granted to aliens who satisfy the conditions of the Geneva Convention. Applications for asylum are determined in the first instance by the former Aliens Authorities (now called the Immigration Service) and in the second instance by the Refugee Appeals Board.
22. Pursuant to section 56, subsection 8, of the Aliens Act, decisions by the Refugee Board are final, which means that there is no avenue for appeal against the Board's decisions. Aliens may, however, by virtue of Article 63 of the Danish Constitution (Grundloven) bring an appeal before the ordinary courts, which have authority to adjudge on any matter concerning the limits to the competence of a public authority.
23's country of origin or first country of asylum. For this purpose, the Refugee Appeals Board has a comprehensive collection of general background material on the situation in the countries from which Denmark receives asylumseekers. The material is up-dated and supplemented on a continuous basis. The background material of the Refugee Appeals Board is obtained from various authorities, in particular the Danish Ministry of Foreign Affairs and the Danish Immigration Service. In addition, background material is procured from various organisations, including the Danish Refugee Council, Amnesty International and other international human rights organisations and the UNHCR. Also included are the annual reports of the US State Department (Country Reports on Human Rights Practices) on the human rights situation in a large number of countries, reports from the British Home Office, reports from the documentation centre of the Canadian Refugee Appeals Board, reports from the Swedish Ministry for Foreign Affairs, reports from EURASIL (European Union Network for Asylum Practitioners), reports from the authorities of other countries and to some extent articles from identifiable (international) journals. Moreover, the Board may request the Danish Ministry of Foreign Affairs to issue an opinion on whether it can confirm information from a background memorandum drafted in general terms. The Refugee Appeals Board also retrieves some of its background material from the Internet. Internet access also enables the Board to obtain more specific information in relation to special problems in individual cases.
24. Usually, the Refugee Appeals Board assigns counsel to the applicant. Board hearings are oral and the applicant is allowed to make a statement and answer questions. The Board decision will normally be served on the applicant immediately after the Board hearing, and at the same time the Chairman will briefly explain the reason for the decision made.
25. Extensive information about Sri Lanka can be found in NA. v. the United Kingdom, no. 25904/07, §§ 53-83. The information set out below concerns events occurring after the delivery of the said judgment on 17 July 2008 and, in particular, after the cessation of hostilities in May 2009.
26. Fighting between the Sri Lankan army and the LTTE intensified in early 2009, with the army taking a number of rebel strongholds in the north and east of the country. On 19 May 2009, in an address to the country's parliament, the President of Sri Lanka announced the end of hostilities and the death of the leader of the LTTE, Velupillai Prabhakaran. It was also reported that most, if not all, of the LTTE's leadership had been killed.
27. The previous day, the United Nations Office for the Coordination of Humanitarian Affairs had estimated that around 220,000 people had already reached internally displaced persons' camps, including 20,000 in the last two or three days. In addition, it was believed that another 40,000-60,000 people were on their way to the camps through the crossing point at Omanthai, in the northern district of Vavuniya.
28. In July 2009, the South Asia Terrorism Portal reported that the number of killings in Sri Lanka in the previous three years (including deaths of civilians, security forces and members of the LTTE) was: 4,126 in 2006; 4,377 in 2007; 11,144 in 2008 and 15,549 between 1 January 2009 and 15 June 2009. An estimated 75-80,000 people were reported to have been killed in total over the course of the 26 year conflict.
“Notwithstanding the cessation of the hostilities, the current protection and humanitarian environment in Sri Lanka remains extremely challenging. In the North, nearly the entire population from the territory formerly held by the LTTE in the North (285,000 Tamils) has been confined to heavily militarized camps in the Northern region. Although the government has gradually reduced the military presence in the camps and has pledged to start the progressive return to their villages of origin of the majority of those in the camps, it is clear that this may take a considerable amount of time. The lack of freedom of movement remains the overriding concern for this population restricting its ability to reunite with family members outside the camps, access employment, attend regular schools, and ultimately choose their place of residence.”
30. A Human Rights Watch [HRW] press release, dated 28 July 2009, reported that:
“The government has effectively sealed off the detention camps from outside scrutiny. Human rights organizations, journalists, and other independent observers are not allowed inside, and humanitarian organizations with access have been forced to sign a statement that they will not disclose information about the conditions in the camps without government permission. On several occasions, the government expelled foreign journalists and aid workers who had collected and publicized information about camp conditions, or did not renew their visas.”
31. A further Human Rights Watch press release dated 26 August 2009 set out concerns that more than 260,000 Tamil civilians remained in detention camps without the freedom to leave.
32. In August 2009, the first post-war local elections were held in Northern Sri Lanka. The British Broadcasting Corporation reported that voter turn-out was low due to the number of people who were still displaced. The governing party, the United People's Freedom Alliance, took the majority of seats in the biggest city in the region, Jaffna. However, the Tamil National Alliance, a party sympathetic to the defeated LTTE, took the majority of seats in Vavuniya, the other town where polling took place.
33. On 7 September 2009, James Elder, the official spokesman for the United Nations Children's Fund in Sri Lanka was ordered to leave Sri Lanka because of adverse remarks that he had made to the media about the plight of Tamils in the government-run camps.
34. On 10 September 2009 the Sri Lankan Official Government News Portal announced that the motion to extend the State of Emergency (under which the authorities have extensive anti-terrorism powers and heightened levels of security including checkpoints and road blocks) by a further month had been passed by Parliament with a majority of 87 votes.
35. In a report dated 22 October 2009, the United States of America State Department published a report entitled “Report to Congress on Incidents During the Recent Conflict in Sri Lanka”, which compiled incidents from January 2009, when the fighting intensified, until the end of May 2009. Without reaching any conclusions as to whether they had occurred or would constitute violations of international law, it set out extensive reports of enforced child soldiers, the killing of captives or combatants trying to surrender, enforced disappearances and severe humanitarian conditions during the hostilities.
36. On 21 November 2009, the Sri Lankan Government announced its decision that all internally displaced persons would be given freedom of movement and allowed to leave the detention camps from 1 December 2009.
37. In its Global Appeal 2010-2011, the UNHCR reported that:
“The Government-led military operations in northern Sri Lanka which ended in May 2009 displaced some 280,000 people, most of whom fled their homes in the last few months of the fighting. The majority of these internally displaced persons (IDPs) now live in closed camps in Vavuniya district, as well as in camps in Mannar, Jaffna and Trincomalee. An additional 300,000 IDPs, some of whom have been displaced since 1990, are also in need of durable solutions.
The IDPs originate mainly from the Mannar, Vavuniya, Kilinochchi, Mullaitivu and Jaffna districts in northern Sri Lanka, as well as from some areas in the east of the country. Though the end of hostilities has paved the way for the voluntary return of displaced people, some key obstacles to return remain. For instance, many of the areas of return are riddled with mines and unexploded ordnance. Not all are considered to be of high risk, particularly those away from former frontlines, but mine-risk surveys and the demarcation of no-go areas are urgently needed.
Other key obstacles to return include the need to re-establish administrative structures in areas formerly held by the Liberation Tigers of Tamil Eelam; the destruction or damaged condition of public infrastructure and private homes; and the breakdown of the economy - including agriculture and fisheries.
The Government of Sri Lanka is planning the return framework, and it has called on UNHCR for support with return transport, non-food items, return shelter, livelihoods support and assistance in building the capacity of local authorities.
With some progress having been recently achieved, it is hoped that a substantial number of IDPs will be able to return to their places of origin in the latter half of 2009, but a large portion of new IDPs are also likely to remain in the camps and with host families until well into 2010.”
38. In a Human Rights Report 2009, dated 11 March 2010, the United States of America State Department stated that the Sri-Lankan Government accepted assistance from NGOs and international actors for the IDP camps but management of the camps and control of assistance were under the military rather than civilian authorities. Food, water, and medical care were all insufficient in the first few weeks after the end of the war, but by July the situation had stabilised and observers reported that basic needs were being met. In June the military withdrew from inside the camps but continued to provide security around the barbed wire-enclosed perimeter. The IDPs in the largest camp, Manik Farm, were not given freedom of movement until December, when a system of temporary exit passes was implemented for those who had not yet been returned to their districts of origin. Some observers said that this exit system still did not qualify as freedom of movement.
39. Human Rights Watch, in their report, World Report 2010, estimated that six months after the main fighting ended, the Government continued to hold more than 129,000 people (more than half of them women and girls) in the camps. Over 80,000 of these were children. The camps were severely overcrowded, many of them holding twice the number recommended by the UN. As a result, access to basic requirements such as food, water, shelter, toilets and bathing, had been inadequate. These conditions imposed particular hardships on the elderly, children and pregnant women. The camps were under military administration, and effective monitoring by humanitarian agencies was lacking. The authorities failed to provide camp residents with sufficient information about the reason for their continued detention, the whereabouts of relatives, or the criteria and procedure for their return home.
40. The United Kingdom Border Agency Country of Origin Information Report on Sri Lanka of 11 November 2010 (“the November 2010 COI Report”) stated as follows:
4.23 The International Crisis Group (ICG) report Sri Lanka: A Bitter Peace, 11 January 2010, also referred to “extra-legal detention centres” maintained by the military and observed: “These detained have had no access to lawyers, their families, ICRC or any other protection agency, and it is unclear what is happening inside the centres. In addition, 'the grounds on which the ex-combatants have been identified and the legal basis on which they are detained are totally unclear and arbitrary'. Given the well-established practice of torture, enforced disappearance and extra-judicial killing of LTTE suspects under the current and previous Sri Lankan governments, there are grounds for grave concerns about the fate of the detained. The government has announced that of those alleged ex-combatants currently detained, only 200 will be put on the trial; most will detained for a further period of 'rehabilitation' and then released.”
...
4.25 Referring to the “at least 11,000 people” detained “in so-called 'rehabilitation centers” because of their alleged association with the LTTE, the HRW [document Legal Limbo, The Uncertain Fate of Detained LTTE Suspects in Sri Lanka, released on 29 January 2010, observed: “The government has routinely violated the detainees' fundamental human rights, including the right to be informed of specific reasons for arrest, the right to challenge the lawfulness of the detention before an independent judicial authority, and the right of access to legal counsel and family members. The authorities' consistent failure to inform families of the basis for the detainees' arrest and their whereabouts raises serious concerns that some detainees may have been victims of torture and ill-treatment, which are more likely to take place where due process of law is lacking and which have long been serious problems in Sri Lanka. Given the lack of information about some detainees, there is also a risk that some may have been 'disappeared'.”
4.31 The UNHCR 'Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka', 5 July 2010 reported that “In the wake of the conflict, almost 11,000 persons suspected of LTTE links were arrested and detained in high-security camps” adding that “According to a Government survey, as of 1 March 2010, 10,781 LTTE cadres were being held at 17 centres. Among the detainees were 8,791 males and 1,990 females.” and noted that “Some of the adult detainees have...been released after completing rehabilitation programmes or because they were no longer deemed to present a risk, including some persons with physical disabilities.”
41. The November 2010 COI Report also set out:
4.09 The EIU [The Economist Intelligence Unit], Country Report, Sri Lanka, July 2010 reported: “The EU has warned that Sri Lanka faces losing trade advantages under the Generalised System of Preferences-Plus (GSP-Plus) scheme from August 15th, unless the Government commits itself in writing to improving its human rights record. The EU has put forward 15 conditions that it says the Government needs to promise to meet within the next six months. These include: ensuring that the 17th amendment to the constitution, which requires that appointments to public positions be impartial and reflect the country's ethnic and religious mix, is enforced; repealing parts of the Prevention of Terrorism Act that are incompatible with Sri Lanka's covenants on political and human rights; reforming the criminal code to allow suspects immediate access to a lawyer on arrest; and allowing journalists to carry out their professional duties without harassment. However, the Government has rebuffed the EU, stressing that the issues that it has raised are internal political matters that should not be linked to trade. “The EU is not the only international body currently putting pressure on the government. Sri Lanka has also rejected the UN's appointment of a three-member panel to examine possible human rights violations during the island's civil war. The Sri Lankan authorities have warned that they will not provide visas for panel members to enter the country.”
...
4.11 The EIU, Country Report, Sri Lanka, August 2010 noted that: “The decision by the UN secretary-general, Ban Ki-moon [on 22 June 2010], to appoint a panel to examine accountability issues stemming from the final stages of the island's civil war, which ended in May 2009, has prompted a strong reaction in Sri Lanka ...
4.12 On 17 September 2010 the UN News Service reported that “Secretary-General Ban Kimoon has held his first meeting with the panel of experts set up to advise him on accountability issues relating to alleged violations of international humanitarian and human rights law during the final stages last year of the conflict in Sri Lanka.” The source also noted that the role of the experts was to examine “the modalities, applicable international standards and comparative experience with regard to accountability processes, taking into account the nature and scope of any alleged violations in Sri Lanka.”
42. The United Kingdom Border Agency Country of Origin Information Report on Sri Lanka of 18 February 2009 (“the February 2009 COI Report”) sets out a series of letters from the British High Commission – hereafter “BHC”, Colombo, on arrival procedures at Colombo airport. In its letter of 28 August 2008, the BHC observed:
“[T]he correct procedure for [Department of Immigration and Emigration [DIE]] officers is to record the arrival of these persons manually in a logbook held in the adjacent Chief Immigration Officer's office. The name, date and time of arrival and arriving flight details are written into the log. It records why the person has come to their attention and how the case was disposed of. I have had the opportunity to look at the log, and it appears that the only two ways of disposal are to be passed to the Criminal Investigations Department [CID], or allowed to proceed.
The office of the State Intelligence Service [SIS] is in the immigration arrivals hall and an officer from SIS usually patrols the arrivals area during each incoming flight. Invariably, if they notice a person being apprehended they approach IED [Immigration and Emigration Department] and take details in order to ascertain in [sic] the person may be of interest to them. Their office contains three computer terminals, one belonging to the airport containing flight information and two stand-alone terminals. If an apprehended person is considered suitable to be passed to CID, they are physically walked across the terminal building to the CID offices. A CID officer should then manually record the arrival of the person in a logbook held in their office...often persons shown in the DIE logbook to have been handed to CID are never actually recorded as being received in the CID logbook. It is believed that CID has allowed these persons to proceed and no action has been taken against them.”
43. The same letter also noted that CID offices at the airport contained two computers, which were not linked to any national database. Any checks on persons detained or apprehended were conducted over the phone with colleagues in central Colombo. There were no fingerprint records at the airport. One computer contained records of suspects who had been arrested and charged with offences, and court reference numbers. It continued as follows:
“Were a Sri Lankan national to arrive at Colombo Airport having been removed or deported from the United Kingdom, they would be in possession of either a valid national Sri Lankan passport, or an emergency travel document/temporary passport, issued by the Sri Lankan High Commission in London. The holder of a valid passport would have the document endorsed by the immigration officer on arrival and handed back to him/her. A national passport contains the national ID card number on the laminated details page. I have made enquiries with the DIE at Colombo Airport, and with the International Organisation for Migration who meet certain returnees at the airport, and both have confirmed that a person travelling on an emergency travel document is dealt with similarly. They too have the document endorsed by the immigration officer on arrival and returned to them. Before issuing an emergency travel document, the Sri Lankan High Commission in London will have details of an applicant confirmed against records held in Colombo and will thus satisfactorily confirm the holder's nationality and identity. If a returnee subsequently wishes to obtain a national identity card, they have to follow the normal procedures.”
44. In a letter dated 22 January 2009, the BHC reported that an official had spent several hours observing the return of failed asylum seekers from the United Kingdom, including those who were in possession of emergency travel documents, issued by the Sri Lankan High Commission in London. In the official's opinion, the fact that certain returnees had been issued with emergency travel documents by the Sri Lankan High Commission in London did not seem to make any difference to their treatment upon arrival.
45. The Report of Information Gathering Visit to Colombo on 23 to 29 August 2009, conducted jointly by the Foreign and Commonwealth Office Migration Directorate and United Kingdom Border Agency Country of Origin Information Service (“the Report of Information Gathering Visit, August 2009”), concluded that all enforced returns (of whatever ethnicity) were referred to the CID at the airport for nationality and criminal record checks, which could take more than 24 hours. All enforced returns were wet-fingerprinted. Depending on the case, the individual could also be referred to the SIS and/or the Terrorist Investigation Department for questioning. Anyone who was wanted for an offence would be arrested.
46. The report set out that those with a criminal record or LTTE connections would face additional questioning and might be detained. In general, non-government and international sources agreed that Tamils from the north and east of the country were likely to receive greater scrutiny than others, and that the presence of the factors below would increase the risk that an individual could encounter difficulties with the authorities, including possible detention:
- Outstanding arrest warrant
- Criminal record
- Connection with the LTTE
- Bail jumping/escape from custody
- Illegal departure from Sri Lanka
- Scarring
- Involvement with media or NGOs
- Lack of an ID card or other documentation
47. The United Kingdom Border Agency Country of Origin Information Report on Sri Lanka of 11 November 2010 set out the following:
33.20 The BHC letter of 30 August 2010 went on to observe that: “At the beginning of 2010, partly due to the large numbers of Sri Lankans being returned from around the world and causing logistical problems, CID procedures were relaxed in that they no longer had to detain returnees until written confirmation was received from the local police. All returnees are still interviewed, photographed and wet fingerprinted. The main objective of these interviews is to establish if the returnee has a criminal record, or if they are wanted or suspected of committing any criminal offences by the police. The photographs are stored on a standalone computer in the CID office at the airport. The fingerprints remain amongst paper records also in the CID office at the airport. Checks are initiated with local police, but returnees are released to a friend or relative, whom CID refers to as a surety. This surety must provide evidence of who they are, and must sign for the returnee. They are not required to lodge any money with CID. “The main CID offices at Colombo Airport, which are housed on the ground floor adjacent to the DIE embarkation control, are currently undergoing a complete refurbishment funded by the Australian government. The one completed office suite has three purpose built interview rooms, and facilities where returnees can relax and eat meals.”
...
33.22 A British High Commission letter of 14 September 2010 reported: “There is strong anecdotal evidence that scarring has been used in the past to identify suspects. Previous conversations with the police and in the media, the authorities have openly referred to physical examinations being used to identify whether suspects have undergone military style training. More recent claims from contacts in government ministries suggest that this practice has either ceased or is used less frequently. At the very least it appears that the security forces only conduct these when there is another reason to suspect an individual, and are not looking for particular scars as such, but anything that may indicate the suspect has been involved in fighting and/or military training. There is no recent evidence to suggest that these examinations are routinely carried out on immigration returnees.”
48. On 19 October 2009, Tamilnet reported that twenty-nine Tamil youths were taken into custody by the State Intelligence Unit of the Sri Lanka Police at the International Airport in two separate incidents whilst trying to leave Sri Lanka. It was also reported that since July 2009, special teams of the State Intelligence Unit and police had been deployed in the airport to monitor the movement of Tamils who try to go abroad.
49. The Report of Information Gathering Visit, August 2009, stated that the frequency of cordon and search operations had not reduced significantly in recent months, though there were fewer large-scale operations than in previous years. In general, young male Tamils originating from the north and east of the country were most at risk of being detained following cordon and search operations, with the presence of the risk factors set out above increasing that risk. Those without employment or legitimate purpose for being in Colombo were also likely to be seen as suspect. The same report also noted that most sources agreed that there had been few, if any, abductions or disappearances since June 2009. There was not a great deal of available information about the profile of Tamils targeted for abduction, although it appeared that people linked to the media might be more vulnerable. Police did not generally carry out effective investigations. It went on to note that most sources agreed that there had not been any significant reduction in the number of checkpoints in Colombo, whose stated purpose remained to detect and prevent terrorist activity. In general those most likely to be questioned were young Tamils from the north and east; those without ID; those not resident or employed in Colombo; and those recently returned from the West. However, most sources said that arrests at checkpoints were rare and none had been reported since June 2009. It was reportedly fairly likely that someone would be stopped at a checkpoint en route from the airport to Colombo city. Finally, it clarified that people who wished to live in Colombo but did not originate from there must register with the local police station with a national ID card or full passport, and details of planned length and purpose of stay. In theory, whilst anyone was entitled to register to stay in Colombo, some sources suggested that young Tamil men originally from the north or east of the country could encounter difficulties and face closer scrutiny. The presence of any of the risk factors set out above would also attract greater attention from the police.
“The significant majority of reported cases of human rights violations in Sri Lanka involve persons of Tamil ethnicity who originate from the North and East...In Government-controlled areas, Tamils who originate from the North and the East, which are, or have been under LTTE control, are frequently suspected as being associated with the LTTE. For this reason, Tamils from the North and the East are at heightened risk of human rights violations related to the implementation of anti-terrorism and anti-insurgency measures. While this risk exists in all parts of Sri Lanka, it is greatest in areas in which the LTTE remains active, and where security measures are heaviest, in particular the North and parts of the East, and in and around Colombo.”
“The country of origin information that UNHCR has considered indicates that Tamils from the North of Sri Lanka continue to face a significant risk of suffering serious human rights violations in the region (and elsewhere in the country) because of their race (ethnicity) or (imputed) political opinion. Tamils in the North are still heavily targeted in the security and anti-terrorism measures described in the Guidelines. Wide scale detention and confinement of Tamils from the North remains a serious concern. Pro-Government paramilitary elements also continue to operate with impunity against Tamils in the North.”
53. The UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka of 5 July 2010, which superseded the April 2009 Guidelines contained information on the particular profiles for which international protection needs may arise in the current context. It was stated that:
“given the cessation of hostilities, Sri Lankans originating from the north of the country are no longer in need of international protection under broader refugee criteria or complementary forms of protection solely on the basis of risk of indiscriminate harm. In light of the improved human rights and security situation in Sri Lanka, there is no longer a need for group-based protection mechanisms or for a presumption of eligibility for Sri Lankans of Tamil ethnicity originating from the north of the country. It is important to bear in mind that the situation is still evolving, which has made the drafting of these Guidelines particularly complex.”
54. In summary, the following were UNHCR's recommendations: All claims by asylum seekers from Sri Lanka
(i) persons suspected of having links with the Liberation Tigers of Tamil Eelam (LTTE);
(ii) journalists and other media professionals;
(iii) civil society and human rights activists;
(iv) women and children with certain profiles; and
(v) lesbian, gay, bisexual and transgender (LGBT) individuals.
It was also stated that in the light of Sri Lanka's 26 year internal armed conflict, and a record of serious human rights violations and transgressions of international humanitarian law, exclusion considerations under Article 1F of the 1951 Convention Relating to the Status of Refugees may arise in relation to individual asylum seeker claims by Sri Lankan asylum seekers.
55. The BBC reported in March 2010 that the Colombo Police force had opened four special units in Colombo suburbs able to take statements in Tamil, with plans for more. Previously, Tamil-speaking Sri Lankans had to rely on a friend to translate their complaints into Sinhala.
NON_VIOLATED_ARTICLES: 3


ITEMID: 001-5127
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: G.K. v. AUSTRIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is an Austrian citizen, born in 1955 and residing in Vienna. At the material time the applicant was a civil servant in the Federal Ministry for Foreign Affairs serving as a member of the diplomatic corps. Since 1993 the applicant is retired.
The facts of the case, as submitted by the parties, may be summarised as follows.
From 1988 to 1990 the applicant was assigned to the Austrian embassy in New Delhi as “Legation Councillor”, i.e. a diplomat who may be called upon to represent the Ambassador. In 1991, after having returned to Vienna, he applied for a hardship allowance (Erschwerniszulage) for the time of his service in New Delhi which was granted to him on 28 May 1997 by the Austrian Administrative Court (Verwaltungsgerichtshof). His requests to have the case reopened were rejected on 29 December 1997.


ITEMID: 001-58235
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: CHAMBER
DATE: 1998
DOCNAME: CASE OF KADUBEC v. SLOVAKIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Not necessary to examine Art. 6-3-c;Not necessary to examine Art. 13;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
JUDGES: R. Pekkanen
TEXT: 7. The applicant was born in 1943 and lives in Bratislava, Slovakia.
8. On 25 August 1993 the police intervened in an incident involving the applicant in a spa establishment in Piešťany, Slovakia. The police had to restrain and handcuff him. Subsequently the police notified the Piešťany local office (Obvodný úrad) of the incident (see paragraph 27 below).
9. On 30 November 1993 the local office found that the applicant had committed a minor offence (priestupok) against public order under section 47(1)(a) and (c) of the 1990 Minor Offences Act in that he had disturbed boarders in the spa establishment by his noisy behaviour and refused to obey police officers (see paragraph 22 below). He was fined 1,000 Slovakian korunas (SKK) pursuant to section 47(2) of the Minor Offences Act and ordered to pay SKK 150 in respect of costs.
10. The applicant filed an appeal against this decision with the Trnava district office (Okresný úrad). He maintained that his case had not been examined properly and that he was prevented from defending himself since the decision of the local office had been taken in his absence. He also requested that a witness be heard.
11. On 21 January 1994 the district office dismissed the appeal and upheld the decision of the local office. The applicant’s case was examined by the legal department of the district office which rejected his appeal in a decision signed by the head of that department.
12. On 18 March 1994 the applicant brought a complaint before the Constitutional Court (Ústavný súd). On 30 March 1994 he submitted proof of his indigence to the Constitutional Court and requested that a lawyer be appointed ex officio in order to assist him in the proceedings before it. On 6 April 1994 the Constitutional Court informed the applicant that the Constitutional Court Act did not provide for the ex officio appointment of lawyers and requested him to appoint a lawyer within twenty-one days. The applicant then approached the President of the Bar Association but was nevertheless unable to find a lawyer within the time-limit set by the Constitutional Court.
13. On 25 May 1994 the Constitutional Court dismissed the applicant’s complaint because of his failure to instruct a lawyer to represent him in the proceedings, as required by the Constitutional Court Act.
14. Article 46 § 2 of the Constitution guarantees to everyone who claims to have been denied his rights as a result of a decision made by a public administrative authority the right to appeal to a court of law and have the legality of the decision reviewed, unless otherwise provided by law. The review of decisions on matters of fundamental rights and freedoms may not be excluded from the jurisdiction of courts of law.
15. Article 121 entitles the Government to grant pardons in matters concerning minor offences.
16. Pursuant to Article 127 the Constitutional Court decides on complaints concerning final decisions made by, inter alia, local government authorities and local self-governing bodies in cases concerning violations of the fundamental rights and freedoms of citizens, unless the protection of such rights falls under the jurisdiction of another court.
17. At the time of the offence the legislation read as follows.
18. Section 1 of the Minor Offences Act defines its purpose in the following terms:
“Administrative authorities of the Slovak Republic and municipal organs shall encourage citizens to respect legal rules and the rights of other citizens. They shall ensure, in particular, that citizens do not impede the conduct of the administration ... and contravene public order and civic propriety.”
19. Section 2(1) provides the following definition of a minor offence:
“A minor offence is a wrongful act which interferes with or causes danger to the public interest and is expressly classified as a minor offence in this Act or another law, unless such an act represents a separate administrative offence punishable under special legal rules or a criminal offence.”
20. Section 11 entitles the competent authorities to impose sanctions (sankcie) on the perpetrators of minor offences. It reads as follows:
“(1) The following sanctions may be imposed for a minor offence:
(a) reprimand,
(b) fine,
(c) prohibition to exercise a certain activity,
(d) confiscation of an object.
(2) A sanction can be imposed either separately or in combination with another sanction; a reprimand cannot be combined with a fine.
(3) It is permissible to decide not to impose a sanction if the mere fact that the minor offence was examined is sufficient to reform its perpetrator.”
21. Section 12(1), as relevant, provides:
“When determining the type and amount of the sanction, the seriousness of the minor offence and, in particular, the way and the circumstances in which it was committed, its consequences, the degree of guilt, the motive and the character of the perpetrator including whether or not he or she has already been punished for the same act in ... disciplinary proceedings should be taken into account.”
22. Section 47 governs minor offences against public order. Pursuant to section 47(1)(a) and (c), a person who disobeys a public officer acting in his official capacity or offends public decency commits a minor offence against public order. Under section 47(2) such a minor offence is punishable with a maximum fine of SKK 1,000.
23. According to section 51 the proceedings concerning minor offences are governed, unless otherwise provided, by the Administrative Proceedings Act.
24. Section 52 provides that the following administrative authorities are entitled to examine minor offences: (i) local offices, (ii) police authorities if a minor offence was committed in breach of the generally binding legal rules relating to the security of road traffic and (iii) other organs of State administration if a special law so provides.
25. Pursuant to section 58(4)(b) cases involving minor offences against public order are investigated by the police authorities subordinated to the Ministry of the Interior.
26. Section 59(1) provides that minor offences are to be investigated either on the basis of an investigation carried out by the competent police authority or upon a notification submitted by an individual, an organisation or an authority.
27. Under section 63(1) the police authority should submit to the competent administrative organ a report on the outcome of its investigation of a case. Such a report ought to comprise, inter alia, a description of the relevant facts and specify which minor offence they are alleged to constitute.
28. Section 73 reads as follows:
“(1) A citizen is accused of a minor offence as soon as the administrative authority has taken the first procedural step against him or her. Such a person shall be considered innocent until his or her guilt has been established by a final decision.
(2) A person accused of a minor offence has the right to comment on all facts that are imputed to him or her as well as on the evidence related to these facts, to present facts and evidence in his or her defence, make submissions and have recourse to remedies. He or she cannot be forced to make statements or to plead guilty.”
29. Section 77, as relevant, provides:
“The operative part of a decision by which an accused of a minor offence is found guilty shall comprise also the description of the act including the place and time when the minor offence was committed, the finding of guilt, the type and amount of the sanction or, as the case may be, the decision not to impose a sanction...”
30. According to section 83(1) decisions on minor offences imposing a fine exceeding SKK 2,000, prohibiting the exercise of a certain activity for a period exceeding six months or confiscating an object having a value exceeding SKK 2,000 can be reviewed by the courts. In such cases the provisions of Articles 244 et seq. of the Code of Civil Procedure on administrative jurisdiction are applied.
31. Section 1(1) of Law no. 472/1990 on the Organisation of Local State Administration, as amended, empowers district offices and local offices to carry out local administration falling within the competence of the State. The exercise of local administration by the aforesaid authorities is managed and controlled by the government.
32. Under section 6(1) the head of a local office is appointed and dismissed by the head of a district office.
33. According to section 8(1) the head of a district office is appointed by the government on the proposal of the Ministry of the Interior.
34. The officers of local and district offices are subordinated to the heads of those offices and their contracts of employment are governed, as in the case of other salaried employees, by the provisions of the Labour Code.
35. In 1996 this Law was repealed and replaced by Law no. 222/1996 on the Organisation of Local State Administration.
36. Under the terms of Article 135 § 1 of the Code of Civil Procedure civil courts are bound, inter alia, by the decisions of the competent authorities that a criminal offence, a minor offence or another administrative offence punishable under special rules has been committed.
37. Article 3 § 1 of the Criminal Code defines a criminal offence as an act which is dangerous to society and whose characteristics are laid down in the Criminal Code. However, according to Article 3 § 2, an act whose dangerousness is negligible is not a criminal offence even if it has its attributes.
38. According to Article 3 § 4 the degree of dangerousness of an act is determined, in particular, by the importance of the protected interest affected by that act, by the circumstances and the way in which the act was committed and its consequences as well as by the character of its perpetrator, the degree of his guilt and his motives.
39. Article 202 of the Criminal Code provides that a person who commits in public an act of gross indecency or causes a grave disturbance, in particular by attacking another person, profaning a cultural or historical monument or a grave, or who disturbs in a serious manner a meeting or a ceremony may be either fined or sentenced to a prison sentence not exceeding two years.
40. The Criminal Code refers to repressive measures imposed for committing a criminal offence as penalties (tresty).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-103647
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF KLEIN v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: Violation of P1-1;Just satisfaction reserved
JUDGES: Anatoly Kovler;Christos Rozakis;Ewald Wiederin;George Nicolaou;Khanlar Hajiyev;Peer Lorenzen
TEXT: 7. The applicant is a former lawyer who was born in 1932 and lives in Vienna.
8. On 24 March 1964 he was admitted to the bar and started to practice as a lawyer in Vienna.
9. On 15 November 1995 the Disciplinary Council (Disziplinarrat) of the Vienna Chamber of Lawyers (Rechtsanwaltskammer) provisionally suspended the applicant's right to practice and on 18 December 1995 bankruptcy proceedings were opened against him. Taking note of that fact, on 23 January 1996 the Executive Committee of the Chamber of Lawyers (Ausschuß der Rechtsanwaltskammer) decided that the applicant had lost his right to practise as a lawyer pursuant to section 34(1a) of the Practising Lawyers Act (Rechtsanwaltsordnung). This provision, as in force at that time, provided that the right to exercise the profession of a practising lawyer shall be revoked following the binding opening of bankruptcy proceedings until their binding termination and the final dismissal of a request to open bankruptcy proceedings for lack of sufficient means. It further appears that, in connection with the bankruptcy proceedings, the applicant was convicted of embezzlement by the Vienna Regional Court on 28 January 1997 and sentenced to four years imprisonment and on 28 October 1997 an additional sentence of one year was imposed on him.
10. On 31 March 1996 the applicant asked the Chamber of Lawyers to strike him out of the List of Lawyers (Rechtsanwaltsliste) for health reasons. On 30 April 1996 the Chamber of Lawyers informed the applicant that it had taken note of his request. However, the Government submitted that the plenary assembly of the Chamber of Lawyers had struck the applicant out of the List of Lawyers on 16 April 1996. The applicant though submitted that no such decision had been taken by the plenary assembly.
11. It appears that the Chamber of Lawyers continued to address invoices for membership fees (including contributions to the pension fund) to the applicant until August 1997. The Government submitted that those requests were based on a clerical error by the Chamber's administration and that the respective invoices were subsequently declared void.
12. On 4 August 1997 the applicant made an application to the Vienna Chamber of Lawyers asking it to grant him an old-age pension. In his request he referred to the fact that he had practised as a lawyer between 1964 and 1995.
13. On 16 June 1998 Division IV of the Executive Committee of the Chamber of Lawyers (Ausschuß der Rechtsanwaltskammer) dismissed the applicant's application. It found that, under the relevant provisions of the Statute of the Chamber of Lawyers Pension Fund, an old-age pension is granted to a lawyer when he or she reaches the retirement age, that is, sixtyfive years old. However, he or she must also have renounced his or her right to practise as a lawyer. Given that, before he reached the retirement age, the applicant had already lost his right to practice as a lawyer, he was not entitled to an old-age pension.
14. On 3 July 1998 the applicant filed an objection (Vorstellung). He submitted that the above-mentioned decision had been unlawful. If, however, the findings of Division IV were correct, the regulations on the entitlement to an old-age pension were unconstitutional because the decision to refuse him a pension after he had paid contributions to the pension fund for more than thirty-two years had been arbitrary.
15. On 14 July 1998 the Plenary of the Executive Committee rejected the objection. It observed that the bankruptcy proceedings which had been opened against the applicant were still pending and the applicant could not claim a pecuniary right without the consent of the receiver. Given that the applicant's objections had been filed without the consent of the receiver, the objection had had to be rejected.
16. On 4 September 1998 the applicant lodged a complaint with the Administrative Court against the above-mentioned decision.
17. On 15 February 1999 the Administrative Court quashed the Plenary decision of 14 July 1998. It found that a pension claim was not one of the claims falling entirely under the list of assets which were subject to bankruptcy proceedings. Accordingly, the applicant himself had had the right to file an objection.
18. On 23 March 1999 the Plenary of the Executive Committee decided again on the applicant's objection. It found that, under the relevant provisions of the Statute of the Chamber of Lawyers Pension Fund, the person applying for the pension must, when reaching the retirement age, still be a member of the Chamber. Given that, before reaching the retirement age, the applicant had lost his membership of the Chamber because he had also lost his right to exercise his profession, he was not entitled to a pension.
19. On 25 May 1999 the applicant lodged a complaint with the Constitutional Court in which he argued that the decision of the Chamber of Lawyers had violated the principle of equality and his right to peaceful enjoyment of his possessions. At the same time he also lodged a complaint with the Administrative Court.
20. On 6 July 1999 the Administrative Court dismissed the applicant's complaint. It found that the applicant would have had a right to an old-age pension only if 1) he had reached the retirement age and 2) he had still been enrolled in the List of Lawyers of the Austrian Chamber of Lawyers at that time. While the applicant had met the first condition, he had not met the second condition because bankruptcy proceedings had been opened against him which had led ex lege to the applicant loosing his right to practice and, thereby, loosing his membership of the Chamber of Lawyers.
21. On 6 October 1999 the Constitutional Court refused to deal with the applicant's case because it would not have had any prospect of success.
22. The rules governing the exercise of the profession of a lawyer are set out in the Lawyer's Act (Rechtsanwaltsordnung). Section 50 of the Lawyer's Act, as amended in 1973 (Lawyer's Act Amendment Act), provided a lawyer with a right to an old-age pension, or, under certain conditions, for a pension for his or her surviving spouse or descendants. The main principles for pension schemes for lawyers are set out in section 50(2) of the Lawyer's Act. According to these principles, only someone who is inscribed in the List of Lawyers of a regional Chamber of Lawyers at the time that he or she reaches the retirement age is entitled to an old-age pension; he or she must have been inscribed on the List for a period of ten or fifteen years before reaching the retirement age; the retirement age is fixed at sixty-eight years and upon reaching that age, a lawyer must renounce his or her right to exercise the profession. Further conditions are set out for pensions on account of incapacity to exercise the profession, widows' or widowers' pension and pensions for descendants. Under section 50(3), the regional Chambers of Lawyers are free to fix more favourable conditions for their own pension scheme.
23. The detailed regulations, as set out in the statues of the pension schemes (Versorgungseinrichtungen) adopted by the plenary assembly of the Vienna Chamber of Lawyers, repeat the conditions under section 50(2) of the Lawyer's Act. The Vienna Chamber of Lawyers has not made use of the possibility under section 50(3) to fix more favourable rules with the exception of fixing the retirement age at sixty-five years.
24. The pension scheme is financed by compulsory contributions from the members of the pension fund, the amount of which is fixed by the plenary assembly of the Chamber of Lawyers and roughly calculated on the basis of the payments to beneficiaries out of the pension fund.
25. The fund has also another source of income. Under Austrian Law, lawyers do not receive individual payments for services rendered in the context of legal aid. However, as a compensation for the services rendered by all lawyers, the State pays an annual lump sum which is divided among the regional Chambers of Lawyers and put into the pension funds.
26. For 1998 the annual contribution to the pension scheme were fixed at 40,000 Austrian schillings (ATS, approximately EUR 2,900) per member and the old age pension at ATS 23,000 (approximately EUR 1,670) payable fourteen times per year. For 1999 the contributions were fixed at ATS 61,000 (approximately EUR 4,430), reduced contributions for members under 32 years at ATS 40,000 (approximately EUR 2,900) and increased contributions for lawyers who were older than 50 years when inscribed in the List of Lawyers for the first time at ATS 71,000 (approximately EUR 5,160). Pension payments for 1999 were fixed at ATS 24,000 (approximately EUR 1,745) payable fourteen times per year. Pension payments were regularly increased over the years and the amount fixed for 2006 was EUR 2,030.
27. By a federal act of 28 October 2003 (Federal Law Gazette I no. 93/2003), which entered into force on 1 January 2004, the pension regime of lawyers was amended. The new system of old-age pensions, as provided for in sections 49 and 50 of the Lawyer's Act, provides that being inscribed in the List of Lawyers at the time of reaching the retirement age is no longer a condition which must be met in order for an old-age pension to be granted. Old-age pensions are now also granted to persons formerly inscribed on the List of Lawyers and, provided that contributions have been made for a minimum time, they are calculated using a formula which takes into account the amount of contributions paid and the period during which they have been paid.
28. On 3 December 2003, in an extraordinary meeting, the plenary assembly of the Vienna Chamber of Lawyers amended the statutes of its pension scheme following the introduction of the above-mentioned rules.
29. Under the transitory provisions of section 18 of the Vienna statues of the pension scheme, the new provisions apply only to lawyers claiming an old-age pension whose right to exercise the profession had not been withdrawn before the amendment entered into force.


ITEMID: 001-57590
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: CHAMBER
DATE: 1986
DOCNAME: CASE OF VAN MARLE AND OTHERS v. THE NETHERLANDS
IMPORTANCE: 2
CONCLUSION: No violation of P1-1
JUDGES: C. Russo
TEXT: 10. Mr. van Marle, Mr. van Zomeren, Mr. Flantua and Mr. de Bruijn were born in 1928, 1928, 1915 and 1929, respectively. The first of them resides in Rotterdam, the second and third in Utrecht and the fourth in Amersfoort. All four have, since various dates between 1947 and 1950, practised as accountants.
11. In 1974, each of the applicants applied to be registered as a certified accountant, in accordance with the transitional provisions contained in section 65 of the Act of 13 December 1972 regulating this profession (see paragraphs 17 and 20 below).
Each of them was asked by the Board of Admission (see paragraph 21 below) to submit five annual accounts drawn up under his responsibility, and they were interviewed by the Board in the course of 1977. The Board finally rejected the applications, on 18 March 1977 in the case of Mr. van Marle, on 5 August 1977 in the cases of Mr. van Zomeren and Mr. Flantua, and on 15 July 1977 in the case of Mr. de Bruijn.
12. The applicants then appealed to the Board of Appeal (see paragraph 22 below). They were again asked to submit accounts prepared by them and were interviewed by the Board in the course of 1978.
A note concerning the Board of Admission’s proceedings was communicated to the Board of Appeal, but not to the applicants.
The Board dismissed the appeals on the ground that the applicants’ statements had been unsatisfactory on certain essential points and that their replies to questions did not show sufficient professional competence. It reached these decisions on 14 July 1978 in the case of Mr. van Marle, on 9 January 1979 in the cases of Mr. van Zomeren and Mr. Flantua, and on 19 January 1979 in the case of Mr. de Bruijn.
13. At the start of Mr. de Bruijn’s interview, the chairman informed him that one of the members of the Board was unable to attend the meeting. Mr. de Bruijn agreed nonetheless to the proceedings taking place; the decision bore the signatures of all five members.
14. None of the applicants took his case to the Council of State as provided for under the Administrative Appeals Act. They considered that there was no point in doing so; as evidence of this they cited a decision of 4 September 1977 of the Judicial Division of the Council of State, which had declared an appeal against a decision of the Board of Appeal inadmissible on the ground that the Board of Appeal was a judicial body and could not be regarded as an administrative one.
15. In 1962 and 1972 the Netherlands Parliament passed two Acts designed to regulate and delimit the profession of accountant, which until then had not been subject to any statutory control.
16. The Act of 28 June 1962The Act of 28 June 1962 (Wet op de Registeraccountants) lays down the standards of professional competence required of accountants practising on a large scale, who are called upon to audit company accounts with a view to issuing a certificate of accuracy (verklaring van getrouwheid).
17. The only statute directly relevant to the present case is the Certified Accountants Act of 13 December 1972 (Wet op de Accountants-administratie-consulenten). It concerns those accountants who do not engage in the aforesaid activities and are not required to have so high a standard of competence - essentially accountants acting for small and medium-sized firms.
18. Since 1 March 1979 - five years after the 1972 Act came into force (1 March 1974) - the position has been that the only persons entitled to call themselves accountants are those covered by the 1962 Act, certified accountants and persons working as accountants in the public service (section 85(2) of the 1972 Act, read in conjunction with section 28(2) and section 29). Anyone wrongfully using the title is liable to criminal penalties and disciplinary proceedings.
19. Application for registration as a certified accountant is made to the Board of Registration (commissie voor de inschrijving), whose decisions are subject to appeal to the Board of Appeal (commissie van beroep; see paragraph 22 below).
Applicants must hold one of the three diplomas specified in the Act or another qualification which, in the view of the Minister for Economic Affairs, denotes similar professional competence (section 10).
20. However, transitional provisions contained in section 65 also permit the registration of persons who had been engaged in professional accountancy work to an extent and in a manner evidencing adequate professional competence
- either for at least ten of the fifteen years immediately preceding 1 March 1974 (section 65(1)(a));
- or, as regards holders of one of the diplomas or qualifications specified in section 65(1)(b), for at least three years immediately preceding 1 March 1974.
Section 65(3) provides that the work in question consists of organising effective management, assessing management effectiveness, drawing up annual accounts, preparing explanatory reports analysing and interpreting data supplied by management and giving advice accordingly.
21. Under section 66 anyone wishing, like the applicants, to take advantage of the transitional provisions must apply to the Board of Admission (commissie voor de toelating), a body established to determine whether a person satisfies the requirements of section 65.
After consulting the Minister of Education and Science and the Minister for Agriculture and Fisheries, the Minister for Economic Affairs decides the size of the Board, appoints the members and designates the chairman and the vice-chairman or vice-chairmen.
The Board, which may sit in chambers of three or more members, may hear the applicant (section 69(1)). He has the option of being assisted by an adviser and, unless the Board decides otherwise, of being represented at the hearing (section 69(4)).
An unfavourable decision may be taken only after the applicant has been heard or at least invited by registered letter to appear before the Board (section 69(1)). Reasons must be given for any such decision and it must be notified to the applicant by registered mail (section 70(2)).
22. The Board of Appeal hears appeals against unfavourable decisions of the Board of Admission (section 71) and the Board of Registration. It is composed of five members and five substitutes. Three of each must be eligible for appointment as a district court judge and exercise, or have exercised, judicial functions, but they may not be, or have been, accountants (section 18(1)); the other two members and substitutes must be accountancy experts.
The members are bound by professional secrecy (section 26). After consulting the Minister of Justice, the Minister for Economic Affairs appoints them and designates the chairman and vice-chairman.
23. Before giving its decision, the Board of Appeal must hear the appellant or invite him by registered letter to appear before it (sections 20(1) and 72(1)). It may obtain information from the Board of first instance and hear third persons (section 72).
Unless the Board decides otherwise, the appellant may be assisted by a lawyer or represented at the hearing; the Board may also refuse to allow him to be represented or assisted by a person who is not a lawyer (section 72(2), read in conjunction with section 20(2) and (3)).
The Board must give reasons for its decision and notify the decision and reasons to the appellant and to the Board of first instance (sections 21(2) and 73(2)).


ITEMID: 001-71226
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF OVCHARENKO v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13;Remainder inadmissible;Pecuniary and non-pecuniary damage, costs and expenses - financial award (global)
TEXT: 4. The applicant was born in 1946 and lives in the city of Lugansk, Ukraine.
5. On 17 April 2000 the Leninsky District Court of Lugansk ordered the State Enterprise “Luganskyi Stankobudivnyi Zavod” to pay the applicant UAH 1,219.10 in salary arrears and other payments.
6. On 20 July 2000 the Leninsky District Bailiffs’ Service instituted enforcement proceedings in respect of that judgment.
7. In May 2001 the applicant lodged with the Leninsky District Court of Lugansk a complaint alleging the unlawfulness of the Bailiffs’ Service’s inactivity in respect of the enforcement of the judgment in his favour. On 15 May 2001 the court found against the applicant, finding no fault on the part of the Bailiffs. The applicant did not appeal in cassation against that decision.
8. In March 2002 the applicant instituted proceedings in the same court against the Bailiffs’ Service seeking compensation for failure to enforce the judgment. On 7 May 2002 the court rejected the applicant’s claim as being unsubstantiated.
9. On 12 September 2002 and 5 May 2003, respectively, the Lugansk Regional Court of Appeal and the Supreme Court of Ukraine upheld the judgment of 7 May 2002.
10. In two instalments of 11 and 27 October 2004 the amount of the judgment debt was transferred to the Bailiffs’ deposit account. On the same dates the applicant was invited to provide the Bailiffs’ Service with his bank account details in order that they transfer the amount of the award.
11. The applicant informed the Bailiffs’ Service that he did not wish to take the money before the Court decided on his application.
12. The relevant domestic law is summarised in the judgment of Romashov v. Ukraine (no. 67534/01, §§ 16-18, 27 July 2004).
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-22644
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: PICHON and SAJOUS v. FRANCE
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicants [Mr Bruno Pichon and Mrs Marie-Line Sajous] are French nationals, who were born in 1955 and 1949 respectively and live in Salleboeuf (Gironde). They were represented before the Court by Mr Tremolet de Villers, of the Paris Bar.
The applicants are the joint owners of a pharmacy in Salleboeuf.
On 9 June 1995 three women arrived at the same time at the applicants’ pharmacy to be told in turn that they could not be supplied with the contraceptives prescribed to each of them by their doctors in prescriptions whose validity has never been called into question.
On the same day the three women in question filed a complaint against the applicants for refusing to sell contraceptives on a doctor’s prescription, an offence provided for and punished by Article 33, paragraph 1 of Decree no. 86-1309 of 29 December 1986 and Article L 122-1 of the Consumer Code. They lodged a civil-party claim in which they were joined by an association.
The applicants argued before the Bordeaux Police Court that the refusal to sell of which they were accused was justified on the legitimate ground that no statutory provision required pharmacists to supply contraceptives or abortifacients. They relied on Article L 645 of the Public Health Code, under which pharmacists were not required to supply single or compound preparations based on oestrogens.
In a judgment of 16 November 1995 the Bordeaux Police Court found the applicants guilty of the offences of which they had been accused. The Police Court noted the following: “Article L 645, on which the defendants rely, does not in any way concern contraceptive medicines but only abortifacients”; the products that the applicants had refused to supply were contraceptive medicines “which [could] not be regarded as the equivalents of abortifacients”. The Police Court added: “Ethical or religious principles are not legitimate grounds to refuse to sell a contraceptive. There is no legislation which authorises pharmacists to refuse to supply contraceptives, unlike the provisions relating to doctors, midwives and nurses as regards the termination of pregnancy (Article L 602-8 of the Public Health Code)”. In conclusion the Police Court held as follows: “Consequently, as long as the pharmacist is not expected to play an active part in manufacturing the product, moral grounds cannot absolve anyone from the obligation to sell imposed on all traders by the law (Article L 122-1 of the Consumer Code)”. The applicants were sentenced to a fine of 5,000 French francs (FRF) each and ordered to pay, jointly and severally, FRF 1,000 in damages to the three complainants.
The applicants appealed against that judgment. In a decision of 14 January 1997, the Bordeaux Court of Appeal upheld the Police Court’s judgment. It noted that the applicants had never disputed that they had committed the acts of which they were accused and that they had stated that their conduct was dictated by religious reasons. It further observed: “The offences of refusing to sell for which the defendants stood trial did not stem in any way from a practical impossibility to satisfy their customers but were committed in the name of religious convictions which cannot be interpreted as a legitimate reason within the meaning of Article L 122-1 of the Consumer Code. Thus the failure to stock this type of product in their dispensary was not the cause but indeed the consequence of this refusal on principle”. The Court of Appeal also noted that the defendants’ pharmacy was the only one in Salleboeuf. It upheld the Police Court’s finding that the products which the applicants had refused to sell were not covered by Article L 645 of the Public Health Code.
The applicants lodged an appeal on points of law against that judgment. They relied in particular on Article 9 of the Convention, asserting that the freedom to manifest one’s religion implied that a pharmacist was entitled not to stock contraceptives whose use amounted to an interference with their religious beliefs. In a judgment of 21 October 1998 the Court of Cassation dismissed that appeal. It agreed with the Court of Appeal’s finding that “personal convictions ... [could] not constitute for pharmacists, who have the exclusive right to sell medicines, a legitimate reason within the meaning of Article L 122-1”. The Court of Cassation’s decision was served on the applicants by a letter from the prosecuting authorities of the Bordeaux Court of Appeal dated 4 December 1998 and posted on 7 December 1998.
“It is prohibited to refuse to sell a product or provide a service to a customer for no legitimate reason, to make the sale of a product conditional on the purchase of a compulsory quantity or the concomitant purchase of another product or payment for another service or to make the provision of a service conditional on the provision of another service or the purchase of a product.
This provision shall apply to all the activities contemplated in the last paragraph of Article L 113-2.”
“The rules relating to the scope of Ordinance no. 86-1243 of 1 December 1986 cited above are laid down by Article 53 of that Ordinance, which provides as follows:
“Article 53: The rules laid down in the present ordinance apply to all production, distribution, and service activities, including those that are carried out by public bodies, particularly under agreements on the delegation of public service activities.”
NB: Article 53 of Ordinance no. 86-1243 of 1 December 1986 as set out above was repealed by Ordinance no. 2000-912 of 18 September 2000.”
“The offer for sale of products or provision of services in breach of the provisions of Article 37 of Ordinance no. 86-1243 of 1 December 1986 shall be punishable by the fines applicable to minor offences (contraventions) of the fifth class.
If the offence is repeated, the fines imposed for repeated minor offences of the fifth class shall be applicable.”
(Transferred into R113-1 and R121-13 of the Consumer Code).
“It is prohibited for any person in any way whatsoever to display, offer, cause to be offered, sell, put on sale, distribute or cause to be distributed the medicines or substances, intra-uterine probes or other similar objects capable of causing or facilitating abortion listed in a decree issued after consultation of the Conseil d’Etat.
Pharmacists may, however, sell the medicines, substances and objects specified above but only on a medical prescription which must be transcribed into a numbered register initialled by the mayor or the police superintendent.
...”


ITEMID: 001-104706
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: COMMITTEE
DATE: 2011
DOCNAME: CASE OF KOSTIN v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Anatoly Kovler;Christos Rozakis;Mirjana Lazarova Trajkovska
TEXT: 4. The applicant was born in 1985 and lives in Voronezh.
5. On 11 April 2005 the applicant initiated civil proceedings against the local administration seeking formal acknowledgment of his entitlement to child benefits and the relevant arrears.
6. On 27 July 2005 the Sovetskiy District Court of Voronezh (“the District Court”) dismissed his claims finding that he was not eligible for the sought benefits. The applicant appealed against the judgment.
7. On 4 October 2005 the District Court summoned the applicant to appear at the appeal hearing fixed for 27 October 2005. There is no evidence that the summons was dispatched or that the applicant indeed received it.
8. On 27 October 2005 the Voronezh Regional Court examined and dismissed as unfounded the applicant’s appeal. The applicant was absent from the appeal hearing, and the appeal court did not examine the question of his due notification at the hearing.
9. According to the applicant, on 1 December 2005 he inquired about the date of the appeal hearing at the registry of the District Court and was told that the Voronezh Regional Court had already examined and dismissed his appeal.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1