ITEMID: 001-58194
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 1998
DOCNAME: CASE OF BRONDA v. ITALY
IMPORTANCE: 3
CONCLUSION: No violation of Art. 8;Not necessary to examine Art. 13
JUDGES: C. Russo;N. Valticos
TEXT: 9. The applicants – Mr Bronda and his wife Mrs Bronda Kaiser – live at Sanremo. In 1984 their daughter, S.B., her common-law husband and their granddaughter, S., born in 1984, moved in to live with them. In 1985 S.'s father moved to Rome.
10. In a note of 30 September 1987, Sanremo Social Services Department informed the relevant authorities that one of the applicants and certain neighbours had told them that S.B. was neglecting her parental duties towards S. Thereafter, S.B.'s interviews with the Social Services Department became tense and her relations with the social workers began to deteriorate.
Accordingly, State Counsel attached to the Genoa District Court requested the Youth Court to commence proceedings with a view to determine whether S. should be removed from her mother’s care.
11. On 29 October 1987 the Genoa Youth Court (“the Youth Court”) made a care order in respect of S. (affidamento al commune); parental rights were assigned to the local authority, Sanremo District Council. Although that decision was declared to be immediately enforceable, it was not in fact enforced as the Social Services Department feared the mother might overreact.
12. On 4 December 1987 S.B. applied to the Youth Court for the care order to be set aside. Three medical reports confirmed that S.B. was mentally fit to assume her parental responsibility.
13. On 10 February 1988 the Youth Court set aside the care order on condition that S.B. remained in regular contact with the social workers.
On 23 March 1988, as S.B. had failed to attend interviews with the Social Services Department, she was questioned by the guardianship judge, who subsequently sent the papers to State Counsel for his opinion as to whether a fresh care order should be made and the child placed for adoption. On 25 March 1988 State Counsel’s Office advised against that course of action.
14. Nevertheless, on 6 April 1988 the Youth Court made a second care order and requested a psychiatric report on S.B. In her report, filed on 25 January 1989, the psychiatrist stated that, although S.B. had certain psychological problems, she was fit to assume her parental responsibilities.
15. On 16 September 1989 the social services took S. away from her mother, who was then admitted to hospital where she received psychiatric care for five days. S. was placed in a children's home.
On 2 November 1989 S.B. requested the Youth Court to set aside the second care order. On 21 February 1990 the court refused to set the care order aside and ordered a further psychiatric report on S.B.
On 13 April 1990 S.B. removed S. from the children's home and took her into hiding. Attempts to find her were unsuccessful.
On 2 July 1990 the psychiatrist stated that S.B. was unfit to assume her parental responsibility and had jeopardised S.'s future emotional development.
16. On 30 August 1990 the Youth Court commenced proceedings with a view to placing S. for adoption.
17. On 1 October 1990 S.B. and S. were found in Sanremo. S. was taken back to the children's home. On 9 October 1990 the President of the Youth Court heard evidence from the applicants and S.B. On 12 November 1990 State Counsel’s Office recommended placing S. for adoption.
18. In a decision of 22 November 1990 the Youth Court ruled that S. was available for adoption (stato di adottabilità) under section 8 of Law no. 184/1983. S. was placed with a family in Tuscany.
S.B. and the applicants applied on 21 January 1991 for an order setting aside that decision; S.’s father did likewise on 7 March 1991.
19. On 13 March 1991 the guardianship judge ordered a medical and psychological report on S.
In his report filed on 10 October 1991, the psychiatrist stated that S.'s father had lost all interest in her, that her mother was suffering from a very serious mental illness and that, consequently, S.'s family environment was detrimental to her emotional and psychological development. S. had therefore been abandoned, which was the statutory precondition for declaring a child available for adoption.
20. On 19 December 1991 the Youth Court dismissed the applications.
21. On 17 March 1992 S.B. and the applicants, who denied that S. had been abandoned, appealed to the Genoa Court of Appeal.
In a judgment of 8 June 1992, the Court of Appeal found that S. had never been abandoned in the sense of her mother failing to provide her with emotional and material support. It set aside the judgment of the Youth Court, annulled the declaration that S. was available for adoption and ordered the Youth Court to arrange for S. to be returned to her natural family. The judgment was immediately enforceable. However, no contact was authorised between S. and her mother or grandparents.
22. Under the procedure laid down by Article 333 of the Civil Code (see paragraph 41 below), the Youth Court instructed a psychiatrist to prepare a report on S.'s family environment and to prepare those concerned for her possible return to her natural family.
23. On 5 October 1992 S.'s guardian ad litem appealed on points of law against the Court of Appeal's judgment.
24. In a decision of 21 December 1992, deposited in the court registry on 22 December and served on the applicants and S.B. on 23 December, the Youth Court prohibited any contact, even by telephone, between S. and her natural family, in order to allow the expert to prepare his report without interference.
25. On 17 February 1993 the expert filed his report; he said that the applicants' family was not yet fit to provide a home for S. and that, moreover, S. had panicked at the idea of leaving her foster parents. The expert concluded, inter alia, that the following factors made it impossible for him to bring S. and her family together:
(a) S.'s mental and psychological state; having fully adapted to her foster parents, she dreaded the prospect of leaving them;
(b) her mother's mental health; she would have been unable to deal adequately with S.'s return and ensure her normal emotional and intellectual development;
(c) the lack of any relationship between S.'s parents; and
(d) the applicants' conflictual family environment.
26. On 16 March 1993 S.'s guardian ad litem made an application under Article 373 of the Code of Civil Procedure (see paragraph 43 below) to the Genoa Court of Appeal for a stay of execution of the judgment of 8 June 1992 until the appeal on points of law to the Court of Cassation had been heard. He submitted in particular, on the basis of the psychiatric report, that returning S. to her natural family would put her at risk and cause her permanent harm.
27. At a hearing on 5 April 1993 evidence was heard from the parties and the psychiatric experts. The applicants and S.B., relying on their own psychiatric report which stated that it was in S.'s interests for her to return to her natural family, opposed the application for a stay.
28. On 19 April 1993 the Court of Appeal ordered a stay. It based its decision on the psychiatric report of 17 February 1993. The Court of Appeal considered that the outcome of the appeal to the Court of Cassation was unpredictable and concluded that postponing S.'s return to her mother and grandparents – even if delay was always undesirable “given the effects of and hopes raised by the passage of time, which further complicate the homecoming” – would be less detrimental to S. than the irreversible effects of returning her to her natural family immediately, only for her to be taken into care again shortly afterwards.
29. In a judgment of 22 March 1994, deposited in the court registry on 6 October 1994, the Court of Cassation dismissed the appeal.
30. The Youth Court, which had been instructed by the Court of Appeal to arrange for S. to be returned to her family (see paragraphs 21 and 22 above), summoned S.B., S.'s father and the applicants, in accordance with the procedure laid down in Article 333 of the Civil Code, to appear before the guardianship judge on 2 March 1995. It ordered a psychiatric report as requested by State Counsel's Office; S. remained with her foster parents.
31. The expert took the oath on 26 April 1995. He then interviewed S.B. twice and arranged a meeting between S.B. and the psychologist from the Social Services Department.
The Youth Court also asked the police for information about S.'s father; two reports were filed, on 27 March and 8 May 1995. In the meantime, the Social Services Department organised three meetings between S. and her natural family, on 21 April, 23 May and 12 June 1995 respectively. At each meeting, S. told her natural relatives that she did not want to return to them. During the meetings, S. appeared frightened and anxious and asked to leave before the appointed time.
32. The expert filed his report on an unspecified date. His view was that it would be dangerous for S. and her mother for S. to return to her natural family since the mother was suffering from a very serious “psycho-dissociative” illness. He recommended that S. should remain with her foster parents at least until her fourteenth birthday, while continuing to have contact with her mother.
33. On 11 August 1995 the Youth Court held that S. was sufficiently mature for her wishes to be taken into account and that she should not therefore be returned to her natural family against her will. Accordingly, the court awarded care of S. to her foster parents under Article 333 of the Civil Code and granted the parents access once every three months. The decision was lodged with the registry on 11 September 1995.
34. On 19 September 1995 S.'s parents and the applicants lodged a complaint (reclamo) against that decision with the Genoa Court of Appeal.
In its decision of 19 October 1995, which was lodged with the registry on 1 December, the Court of Appeal upheld the complaint in part and ordered that monthly meetings be organised under the supervision of the Youth Court, three at the offices of the social services followed by a fourth at the grandparents’ home.
35. On 17 September 1997, having noted that the first three meetings had been attended only by S.’s father and grandparents and in the light of the report of the social services and in particular their finding that the father’s conduct was aggressive and that S. was afraid, the Youth Court held that she should remain with the foster parents. It ordered that there should be no more contact between S. and her parents and allowed the grandfather three access visits a year.
The applicants appealed against that decision to the Court of Appeal, which on 13 October 1997 set the case down for hearing on 7 May 1998.
At the date of adoption of this judgment the Court has no information on the outcome of that hearing.
36. Under Article 30 of the Italian Constitution
“Parents have a duty and a right to maintain, educate and bring up their children, even those born out of wedlock.
Where the parents are incapable of performing these duties and exercising these rights, the legislature shall make appropriate provision...”
37. Law no. 184 of 4 May 1983 completely revised Italian adoption law.
“... a minor has a right to be brought up by his own family.”
“... a minor who has temporarily been deprived of a satisfactory family environment may be placed with another family, if possible with other minor children, or with a single person, or with a family-type community, for the purposes of providing him with support, an upbringing and an education.
If it is not possible to provide him with a satisfactory family environment, a minor may be placed in a public or private children’s home, preferably in the area in which he has been living.”
Section 7 provides that minors who have been declared available for adoption may be adopted. It also lays down that minors aged fourteen or over cannot be adopted unless they have given their consent, even if their fourteenth birthday falls during the course of the proceedings. Minors aged twelve or over must be heard in person. Minors aged under twelve may be heard if it appears appropriate and there is no danger of them thereby being harmed.
“... the Youth Court may, even of its own motion, declare ... a minor available for adoption if he has been abandoned in the sense of being deprived of all emotional or material support from the parents or the members of his family responsible for providing such support (other than in temporary cases of force majeure). A minor shall continue to be considered abandoned ... even if he is in a children’s home or has been placed in a foster home.”
Section 8 provides that a case of force majeure shall be deemed to have ceased where the parents or other members of the minor's family responsible for providing support refuse assistance from the authorities and the court considers their refusal unjustified.
The fact that a minor has been abandoned may be reported to the authorities by any member of the public or noted by a court of its own motion. Furthermore, any public official and any member of the minor's family who is aware that a child has been abandoned must report the situation to the authorities. Any failing by the family in this regard may entail loss of parental responsibility. Children’s homes must keep the judicial authorities regularly informed of the situation of minors whom they take into their care (section 9).
Section 10 provides that, pending a minor's placement in a foster home before adoption, the court may order any temporary measure which is in the minor's interests, including, if necessary, the suspension of parental rights.
Sections 11 to 14 provide that enquiries shall be made so as to clarify the minor's situation and determine whether he has been abandoned. In particular, under section 12 the President of the Youth Court or a delegated judge may, if he considers it appropriate, order the parents to take measures to provide the minor with emotional support, maintenance, an education and an upbringing and at the same time require regular checks – with the assistance, if necessary, of the guardianship judge or the local social services – to ensure that the measures are taken.
38. If, at the end of the procedure provided for in the above sections, the minor is still abandoned within the meaning of section 8, the Youth Court shall declare him available for adoption if:
(a) the parents or other members of the family have not appeared in the course of the proceedings;
(b) it is clear from interviews with them that they are still failing to provide the child with emotional and material support and are unable or unwilling to remedy the situation; and
(c) measures ordered under section 12 have not been implemented through the parents' fault (section 15).
39. Section 15 also provides that a declaration that a minor is available for adoption shall be made in a reasoned decision of the Youth Court sitting in chambers, after it has heard State Counsel, the representative of the children’s home in which the minor has been placed or any foster parent, the guardian, and the minor if aged over twelve or, if under twelve, where necessary.
Under section 19 parental responsibility is suspended while a minor is available for adoption.
Lastly, section 20 provides that a minor shall no longer be available for adoption once he has been adopted or has come of age. Moreover, a declaration that a child is available for adoption may be annulled, either by the court of its own motion or at the request of the parents or State Counsel’s Office, if the conditions laid down in section 8 have in the meantime ceased to apply. However, if the minor has been placed with a family with a view to adoption (affidamento preadottivo) within the meaning of sections 22–24, the declaration that he is available for adoption cannot be annulled.
40. Under the Court of Cassation’s case-law, a child has been abandoned if the parents have been shown to be incapable of ensuring its normal mental and physical development (judgment no. 2099/1989). The Court of Cassation has also held that the fact that a child’s upbringing is less than perfect or that his relationship with his parents can be criticised on account of the latter’s cultural or intellectual shortcomings or personality defects will not necessarily result in the child being declared available for adoption, unless such shortcomings or defects are likely to jeopardise the child's mental development irremediably (judgment no. 3369/1990).
The Court of Cassation has also held that a parent does not have to have lost all interest in the child: it suffices that the behaviour of a parent living with the child seriously and irremediably jeopardises its mental and physical development (judgment no. 3526/1989). A child may therefore be held to have been abandoned even where it is living with its parents (judgment no. 5491/1982), as sometimes the mere presence of a parent may be detrimental to a minor's balanced mental and physical development (judgment no. 7427/1986). The parent does not have to be guilty of wilfully neglecting or harming the minor's interests to have abandoned it. Abandonment is an objective state of affairs and the declaration that a child is available for adoption flows from a decision which is not necessarily intended to penalise the parent (judgment no. 7486/1987).
41. Article 333 of the Civil Code also provides that where the conduct of one or both parents is not sufficiently serious to justify forfeiting their parental rights, but is nonetheless detrimental to the child, the court may take any appropriate decision and even order the child’s removal from its home.
42. The Court of Cassation said in its judgment no. 2641/1982 that even if a declaration that a child is available for adoption is set aside on an application by the parents, the court must not automatically order the child’s return to its family, but must verify whether, in the meantime, the child has adapted and become attached to its foster home and considers it as its own, and whether, consequently, it would be detrimental to the child's equilibrium, physical and mental health, upbringing and future to return it to its natural family.
43. Under Article 373 of the Code of Civil Procedure, where enforcement of a judgment may cause serious and irreparable harm, the court which delivered the judgment in question may stay its execution until an appeal on points of law to the Court of Cassation has been heard.
NON_VIOLATED_ARTICLES: 8


ITEMID: 001-5286
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: LEE v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is a British national, born in 1949 and living in Pensby, England.
On 10 March 1997 the applicant, at the time a police sergeant, was suspended from duty for four months on account of his failure to co-operate in an internal investigation into allegations that a police officer had been illegally supplying steroids. The Discipline Officer of the Police Complaints and Discipline Department alleged that the applicant had attempted to pervert the course of justice and had deliberately withheld information. Another police officer received a similar suspension.
According to the applicant, pressure was brought to bear on him to lie in order to incriminate the police officer. Although questioned under caution, he was not allowed to see a solicitor. Criminal charges were not brought against the applicant on the advice of the Crown Prosecution Service (“CPS”). According to the CPS, there was insufficient evidence to charge the applicant.
The applicant’s suspension was lifted in July 1997 and he returned to duty. The applicant continued to complain about the way he had been treated by the Discipline Officer and his investigating team.
The applicant was due to retire on grounds of ill-health on 30 March 1998. On 10 March 1998 he was informed that he faced disciplinary proceedings for having failed to provide a statement for the purposes of the investigation into the above-mentioned drug allegations. The charge was that of neglect of duty.
The disciplinary hearing, chaired by the Chief Constable of Merseyside Police, took place over four days in September 1998. The applicant was legally represented. On 16 September 1998 the applicant was found guilty of neglect of duty and received a reprimand. In the conclusion of the Chairman:
“A police officer has a duty to make statements, he/she has a duty to clarify and remove ambiguities if asked, and should get on with it. ... An investigating officer does not and should not have to negotiate over statements from a police officer. There should not be any delays or arguments about what officers may wish to say or what they feel is appropriate to say. Police officers have to tell what they know and get on with it.”
On 19 March 1999 the Secretary of State dismissed the applicant’s appeal under section 37 of the Police Act 1964 as amended. The Secretary of State approved the Chairman’s conclusion and further added that he believed that the applicant was aware that there was more information that he could have provided and which was wanted, and that he should have co-operated. The Secretary of State also found that the Chairman had taken sufficient account of the applicant’s submissions that he was the victim of an abuse of process as well as of his assertion that a statement produced during the disciplinary hearing had been forged.


ITEMID: 001-95847
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF HORVATH AND OTHERS v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: András Sajó;Françoise Tulkens;Kristina Pardalos;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 4. The applicants are sixteen Hungarian nationals and two Hungarian companies (see list in Annex).
5. In June 1997 the applicants brought an official liability action against the Budapest IXth District Municipality. The Budapest Regional Court held several hearings and obtained the opinions of experts. It stayed the procedure for altogether one year and five months pending the successions of two plaintiffs who had died in the meantime.
6. On 5 May 2003 the Regional Court gave judgment. On 18 November 2003 the Budapest Court of Appeal quashed this decision and remitted the case.
7. In the resumed proceedings, several hearings took place and the opinion of an expert was obtained. According to the information in the case file, the case is still pending before the first-instance court.
VIOLATED_ARTICLES: 6


ITEMID: 001-60112
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF VISSER v. THE NETHERLANDS
IMPORTANCE: 2
CONCLUSION: Violation of Art. 6-1 and 6-3-d;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award
JUDGES: Lucius Caflisch
TEXT: 10. In a statement taken and recorded by police on 30 September 1987, one Mr A. said that he had been kidnapped and beaten up by two unknown men. He suspected that they had acted on the orders of another man, Mr G., and that his kidnap had constituted an act of revenge for a burglary that he, Mr A., was rumoured to have carried out. On 11 April 1988 preliminary judicial investigations were initiated into allegations that the applicant and an accomplice, Mr D., had intentionally deprived Mr A. of his liberty on 30 September 1987.
11. On 28 April 1988 two police officers drew up an official record (proces-verbaal) containing the findings of the investigation into the kidnapping and assault of Mr A. It stated, inter alia, that a number of witnesses had seen Mr G. and two other persons in bars in the town of Weesp in the night of 29 to 30 September 1987 and that these witnesses had overheard the three men making inquiries into the whereabouts of the victim, Mr A. Mr A. was said to know Mr G. well and to be very afraid of him. Police investigations conducted in various bars in Weesp had shown that Mr G. had such a reputation that this fear was shared by many people. According to the reporting officers, the witnesses who had seen the suspects prior to and during the commission of the offences in question were so scared that they were afraid to make written statements.
12. The official police record then describes how four witnesses were confronted with the applicant and his co-accused Mr D. through a two-way mirror. The police officers observed that the witnesses became very fearful upon seeing the suspects and that they wanted to leave the room as soon as possible. None of the four witnesses identified the applicant, although one of them said that the applicant looked similar to one of the perpetrators. The witnesses were interviewed separately after the identification procedure; one of them indicated to the police officers that s/he did not wish to remain on his/her own for fear of coming face to face with Mr D. whom s/he had recognised as one of the perpetrators. The police officers further reported that a fifth witness recognised from twelve photographs shown to him/her the applicant, Mr D. and Mr G. as the men who had made enquiries into the whereabouts of the victim.
13. One of the police officers also noted that the witnesses had repeatedly telephoned him after they had made their statements, saying that they wished to withdraw these statements because they feared reprisals by the applicant and his co-accused. The police officer considered that this fear was not unfounded given that, since the event, unknown persons had put pressure on the victim.
14. Criminal proceedings were brought against the applicant in the Regional Court (Arrondissementsrechtbank) of Utrecht. The charges against him included having been an accomplice to the offence of intentionally and unlawfully depriving Mr A. of his liberty and keeping him deprived thereof.
15. On 1 June 1989 the Regional Court acquitted the applicant of that charge, convicted him on another charge and sentenced him to a partly suspended term of ten weeks’ imprisonment, less the time spent in pre-trial detention. By a judgment of the same date, the Regional Court also acquitted the applicant’s co-accused, Mr D.
16. Both the applicant and the Prosecutions Department (Openbaar Ministerie) lodged an appeal against the Regional Court’s decision with the Court of Appeal (Gerechtshof) of Amsterdam. No appeal was lodged against the judgment concerning Mr D.
17. On 18 April 1991 the Court of Appeal quashed the Regional Court’s judgment, convicted the applicant, inter alia, of having deprived Mr A. of his liberty and sentenced him to one year’s imprisonment, less the time spent in pre-trial detention. The Court of Appeal used in evidence, inter alia, the following section from the official police record of 28 April 1988 (see §§ 11-13 above):
“It has emerged from the investigation that several witnesses saw Mr G., who was known to them, with two other persons in bars in Weesp in the night of 29 to 30 September. These witnesses also overheard these three persons making enquiries into the whereabouts of the victim, Mr A.
One witness was shown twelve photographs, including pictures of the suspects Mr D., <the applicant> and Mr G. The witness stated that s/he was 100% sure of recognising from the photographs the three named persons as being the persons who had made enquiries into the whereabouts of the victim on 29 and 30 September 1987 in Weesp. The witness had subsequently seen Mr D. and <the applicant> leaving with the victim’s brother, while Mr G. had stayed behind in the bar in Weesp, where shortly afterwards this Mr G. had been approached by <the applicant>, who had returned in the meantime, and who had taken Mr G. outside.”
18. The applicant lodged an appeal on points of law against that judgment with the Supreme Court (Hoge Raad).
19. On 14 September 1992 the Supreme Court quashed the judgment of the Court of Appeal. It held that the way in which the facts had been established by the Court of Appeal did not comply with legal requirements. It recalled that the statement of an anonymous witness could only be used in evidence if it had been taken down by a judge who knew the identity of the witness, who had expressed his opinion as regards the reasons for the witness’s desire to remain anonymous and that witness’s reliability, and who had provided the defence with ample opportunity to question the witness. The Supreme Court added that it could not be said that the finding of guilt was based to a significant extent on other evidence from identified sources. The Supreme Court decided that the applicant’s original appeal against the judgment of the Regional Court of Utrecht of 1 June 1989 should be considered again and, to that end, referred the case to the Court of Appeal of The Hague.
20. At the subsequent public hearing on 18 June 1993 the Court of Appeal of The Hague instructed the investigating judge (rechter-commissaris) of the Regional Court of Utrecht to hear the witness who had previously recognised the applicant from photographs, as described in the official police record of 28 April 1988. If need be, that witness was to be heard with the application of appropriate measures to safeguard the witness’s anonymity, should the witness wish to remain anonymous.
21. On 13 September 1993 the witness was heard under oath by the investigating judge, who was aware of the identity of the witness. The opinion of the investigating judge that the identity of the witness should remain concealed was phrased as follows in the official record of the interview:
“In a short conversation prior to the actual interview, the investigating judge discussed with the witness the latter’s wish to remain anonymous. The witness stated that s/he was fearful because one of [the applicant’s] fellow suspects can be very aggressive, which, according to the witness, is common knowledge. The witness also said that s/he feared reprisals given that, as the witness has heard it said, the case in which the witness is about to make a statement in itself also concerns an act of revenge.
In view of the witness’s statements above, as well as the contents of the record drawn up by the police officers on 28 April 1988 and the statements of the witness which cannot be reproduced here, the investigating judge is of the opinion that the necessity to hear the witness anonymously has been sufficiently substantiated.”
22. Counsel for the applicant attended the interview in a different room. In addition to his own questions, the investigating judge also put a number of questions to the witness at the request of counsel, who had submitted these questions to the investigating judge in writing beforehand. The investigating judge twice gave counsel the opportunity to read through the statement of the witness and to put further questions, again to be asked by the investigating judge, to the witness, and counsel did in fact avail himself of this opportunity.
23. In reply to one of the questions put by counsel the witness said that when interviewed by police, on about 18 April 1988, s/he had been handed a bundle of about fifteen photographs. The witness had taken out three photographs of persons whom s/he had recognised. Counsel also asked the witness why the latter was so afraid and why the witness wished to remain anonymous. In reply, the witness stated that s/he had explained the reasons to the investigating judge at the beginning of the interview. The witness added that some of these reasons had not, however, been noted down by the investigating judge as the latter had considered that by doing so the witness’s anonymity could not be sufficiently guaranteed.
24. In the official record of the interview, the investigating judge noted that the statement of the witness appeared to be consistent and that it corresponded to the statement given previously to the police. In the opinion of the investigating judge, it could be concluded that the witness was a reliable witness.
25. At the subsequent hearing before the Court of Appeal on 15 September 1993, counsel submitted that although his questions had been put to the anonymous witness, taking evidence from a witness who could neither be seen nor heard by the defence and who did not appear before the trial court remained problematic. Counsel also queried whether the anonymous witness’s fear of reprisals was real or contrived. He further argued that the scent-association test carried out by a sniffer dog could not be relied upon since a similar test carried out by a different sniffer dog had not resulted in the applicant’s scent being associated with the scent on a revolver.
26. On 29 September 1993 the Court of Appeal quashed the Regional Court’s judgment of 1 June 1989, convicted the applicant, inter alia, of having deprived Mr A. of his liberty, and sentenced him to one year’s imprisonment, less the time spent in pre-trial detention. It based its finding of guilt on the following evidence:
(a) an official record of 30 September 1987, drawn up by a police officer, containing the statement of the victim, Mr A., to the effect that he had been forcibly taken from his house and beaten up, inter alia, with the butt of a chrome-coloured revolver, by two men unknown to him;
(b) an official record of 30 September 1987 containing a statement from the police officers who had found Mr A. to the effect that, when they were driving Mr A. home, the latter had recognised the car in which he had been held and assaulted;
(c) an official record of 30 September 1987 containing a statement from the same police officers to the effect that they had found traces of blood on the car indicated by Mr A. and that they had arrested Mr G. near the car;
(d) a report of 30 September 1987 (contained in an official police record of 20 October 1987) drawn up by a member of the scientific police investigation department stating that the traces of blood found on the inside and outside of the car, as well as a chrome-coloured revolver and a jacket found inside the car, were sent to the forensic laboratory (Gerechtelijk Laboratorium) together with a blood sample taken from the victim;
(e) an official record drawn up by the forensic laboratory dated 14 December 1987 indicating that the traces of blood could have come from Mr A.;
(f) an official record of 14 March 1988 drawn up by a police officer stating that the revolver and a car telephone found in the car had been seized;
(g) an official record of 25 April 1988 drawn up by a police officer who had been in charge of a scent-association test which had been carried out with a sniffer dog, to the effect that this dog had three times associated the scent on the butt of the revolver which had been found in the car with an object which had been held by the applicant;
(h) the official record of 13 September 1993 drawn up by the investigating judge containing the statement of the anonymous witness to the investigating judge, to the effect that, inter alia, the witness confirmed his/her previous statement to the police officers in which s/he said that s/he had seen the applicant and his co-defendants, whom the witness identified from photographs shown to him/her, on the night of 29 to 30 September 1987 in a bar, that they had made enquiries into the whereabouts of the victim, and that the witness had heard from several people that the applicant and his co-defendants were involved in the assault and battery of the victim; and
(i) the statement which the applicant had made at the hearing before the Court of Appeal to the effect that he knew the defendants Mr G. and Mr D. well, that the car in question had been used by Mr G. in the period around 30 September 1987, that Mr D. and he would regularly drive the car and that the telephone which had been present in the car had been registered in his name.
27. Unlike the Court of Appeal of Amsterdam, the Court of Appeal of The Hague did thus not make use of the statement made by the anonymous witness to the police on 28 April 1988, but only to this witness’s statement before the investigating judge. The other items of evidence were essentially the same as those used by the Court of Appeal of Amsterdam in its judgment of 18 April 1991.
28. The Court of Appeal’s judgment contained no assessment as to the reliability of the statement of the anonymous witness or as to the validity of the witness’s desire to remain anonymous.
29. The applicant lodged an appeal on points of law with the Supreme Court. He complained, inter alia, that insufficient facts and/or circumstances had been adduced justifying the need for the witness to remain anonymous and that the statement of the anonymous witness could not be relied upon as it had been taken almost six years after the alleged offence. The applicant further submitted that the series of photographs from which the anonymous witness was said to have selected the photograph of the applicant had not been put before the investigating judge. Neither the investigating judge nor the defence had therefore been in a position to assess the nature of the photographs, the way in which they were presented or the certainty of the recognition.
30. The Supreme Court dismissed the appeal on 7 June 1994. After having noted that the investigating judge had found that the anonymous witness was afraid because one of the applicant’s co-accused could be very violent and because the witness feared reprisals as the offence of which the applicant stood accused itself concerned an act of revenge, the Supreme Court considered that the conclusion of the investigating judge that there were circumstances justifying the anonymity of the witness did not constitute an incorrect interpretation of the law and was not incomprehensible. In respect of the applicant’s complaints relating to the photographs which had originally been shown to the anonymous witness, the Supreme Court noted that the official record containing the statement taken on 28 April 1988 had not been used in evidence against the applicant by the Court of Appeal.
31. Relevant domestic law and practice at the time of the criminal proceedings complained of were as set out in the Court’s judgments in the cases of Doorson v. the Netherlands of 26 March 1996 (Reports of Judgments and Decisions 1996-II, p. 446) and Van Mechelen and Others v. the Netherlands of 23 April 1997 (Reports 1997-III, p. 691). Reference is therefore made to those judgments, especially pp. 461-64, §§ 37-47, and pp. 705-708, §§ 29-41 respectively.
32. In its judgment of 2 July 1990, NJ 1990, no. 692, the Supreme Court considered that it had to be assumed in the light of the European Court’s Kostovski judgment (20 November 1989, Series A no. 166) that the use of statements by anonymous witnesses was subject to stricter requirements than those established in its case-law until then. It established these stricter requirements in the following rule: such a statement must have been taken down by a judge who (a) is aware of the identity of the witness, (b) has expressed, in the official record of the hearing of such a witness, his reasoned opinion as to the reliability of the witness and as to the reasons for the wish of the witness to remain anonymous and (c) has provided the defence with some opportunity to put questions or have questions put to the witness. On the other hand, according to the same judgment, a written document containing the statement of an anonymous witness may be used in evidence if (a) the defence has not at any stage of the proceedings asked to be allowed to question the witness concerned, (b) the conviction is based to a significant extent on other evidence not derived from anonymous sources and (c) the trial court makes it clear that it has made use of the statement of the anonymous witness with caution and circumspection.
33. The Act of 11 November 1993, Staatsblad (Official Gazette) 1993, no. 603, has added to the Code of Criminal Procedure (CCP) a number of detailed provisions relating to the “protection of witnesses”. It entered into force on 1 February 1994. The additions include the following. Article 226a now provides that the identity of a witness may remain secret if there is reason to believe that the disclosure of his identity may threaten his life, health, safety, family life or socio-economic existence and if the witness has made it clear that he does not wish to make any statement because of this. The decision is made by the investigating judge, who must first hear the prosecution, the defence and the witness himself. An appeal against the decision of the investigating judge lies to the trial court (Article 226b). The investigating judge may order that a threatened witness be heard in the absence of the accused, or of counsel, or of both, so as not to disclose the identity of the threatened witness; in that event, the prosecuting authorities may not attend the questioning of the witness either. The investigating judge must then allow the defence to put questions of its own to the witness, either through the use of telecommunication or in writing (Article 226d). Article 264 now lays down that the prosecution may refuse to summon a threatened witness. If the trial court has ordered that a witness be heard and that witness turns out to be under threat, he must be heard in camera by the investigating judge (Article 280 § 5). The statement of an anonymous witness taken in accordance with the above-mentioned provisions may only be used in evidence against a person accused of crimes in respect of which he may be held in detention on remand (Article 342 § 2 (b)). A new paragraph has been added to Article 344 to the effect that a written document containing a statement of a person whose identity is not apparent may only be used in evidence if the conviction is based to a significant degree on other evidence and if the defence has not at any time during the trial sought to question that person or to have him questioned.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-80346
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: WEISERT v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Peer Lorenzen
TEXT: The applicant, Mr Hartmut Weisert, is a German national who was born in 1943 and lives in Frankfurt.
On 20 October 1993 the Frankfurt Public Prosecutor’s Office commenced criminal investigations against the applicant on suspicion of fraud related to the raising of credit secured on real property. It informed the applicant about the criminal investigations against him the day after.
On 7 December 1999, after having held a hearing during which the applicant was represented by a court appointed lawyer, the Frankfurt District Court convicted the applicant of aggravated fraud and sentenced him to two years’ imprisonment. The court considered as a mitigating factor that the offence had been committed already a considerable time ago, namely in March and April 1992. The court, having regard to the lapse of time, suspended the execution of the sentence on probation.
On 5 November 2002 the Frankfurt Regional Court, upon the applicant’s appeal, scheduled eight hearings for the period between 10 December 2002 and 22 January 2003. On 29 November 2002 the applicant withdrew his appeal. He submitted that he had suffered mentally and physically from the length of the proceedings against him. Therefore he would not have been able to attend the hearings.
On 30 December 2002 the applicant lodged a constitutional complaint with the Federal Constitutional Court complaining about the alleged failure of the District Court to appoint a lawyer of his own choosing, about the densely scheduled hearings during the appellate proceedings and that the sitting judge at the Regional Court had been substituted by another judge.
On 18 March 2003 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint without giving any reasons.
Article 2 § 1 of the German Basic Law (Grundgesetz) in conjunction with the principle of the rule of law guarantees the right to expeditious proceedings. According to the settled case-law of the Federal Court of Justice (see, decision of 21 July 1994, no. 1 StR 396/94, decision of 26 June 1996, no. 3 StR 199/95) and of the Federal Constitutional Court (see, among others, decision of 24 December 1983, no. 2 BvR 121/83; decision of 19 April 1993, no. 2 BvR 1487/90), the consequence of the excessive length of criminal proceedings must be either a reduction of the sentence or even the discontinuation of the proceedings. Pursuant to recent decisions of the Federal Constitutional Court, that principle applies to the criminal courts as well as to the Public Prosecutor’s Office (see, decision of 25 July 2003, no. 153/03, Reports of Chamber Decisions (BVerfGK) no. 1, pp. 269 et seq. and decision of 21 January 2004, no. 2 BvR 1471/03, Reports of Chamber Decisions (BVerfGK) no. 2, pp. 239 et seq. and decision of 21 June 2006, nos. 2 BvR 750/06, 752/06 and 761/06).
Section 153 of the Code of Criminal Procedure provides that the public prosecution or the courts may discontinue the proceedings at any stage if the perpetrator’s culpability is considered to insignificant and if there is no public interest in the prosecution.
Section 154 provides that if a judgment cannot be expected in reasonable time and if another sentence or the measure of reform and prevention already imposed seems sufficient to protect the legal order, the public prosecution may decide not to prosecute and the courts may close the proceedings preliminarily at any stage upon a motion by the public prosecutor’s office.


ITEMID: 001-23989
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: KULJANIN v. CROATIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Mr Milosav Kuljanin, is a Croatian national who was born in 1945 and lives in Zagreb. The respondent Government were represented by their Agent, Ms Lidija Lukina-Karajković.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant and his former wife had a house in Barilović, Croatia. They built the house while married and were considered joint owners, although the applicant was the sole registered owner. On 11 June 1991 he allegedly gave the house as gift to his former wife but they did not report the conveyance to the land registry. He remained the sole registered proprietor.
In mid-1992 the house was mined by unknown perpetrators.
On 17 January 1995 the applicant obtained a divorce from his wife.
On 19 May 1995 his former wife instituted civil proceedings before the Zagreb Municipal Court (Općinski sud u Zagrebu) seeking damages from the Republic of Croatia for the destroyed house.
On 16 June 1995 the defendant submitted that the applicant was the registered owner of the house and that his former wife therefore had no locus standi in the proceedings.
On 28 July 1995 the applicant's former wife submitted that she had received the house as gift from him in 1991.
Pursuant to the Civil Obligations (Amendments) Act 1996 (Zakon o izmjeni Zakona o obveznim odnosima), the Zagreb Municipal Court stayed the proceedings on 13 May 1996.
Pursuant to the Damage from Terrorist Acts and Public Demonstrations Act 2003 (Zakon o odgovornosti za štetu nastalu uslijed terorističkih akata i javnih demonstracija), the proceedings resumed on 25 September 2003.
The applicant has submitted a document from which it appears that his former wife and he agreed to annul the above-mentioned contract to gift the house on 13 January 2004.
The relevant part of the Civil Obligations Act (Zakon o obveznim odnosima, Official Gazette of the Republic of Croatia nos. 53/1991, 73/1991, 3/1994, 7/1996 and 112/1999) read as follows:
“Responsibility for loss caused by death or bodily injury or by damage or destruction of another's property, when it results from violent acts or terror or from public demonstrations or manifestations, lies with the ... authority whose officers were under a duty, according to the laws in force, to prevent such loss.”
The relevant parts of the Civil Obligations (Amendments) Act 1996 (Zakon o izmjeni Zakona o obveznim odnosima, Official Gazette of the Republic of Croatia no. 7/1996, hereinafter “the 1996 Act”) read as follows:
“Section 180 of the Civil Obligations Act ... shall be repealed.”
“Proceedings for damages instituted under section 180 of the Civil Obligations Act shall be stayed.
The proceedings referred to in sub-section 1 of this section shall be continued after the enactment of special legislation governing responsibility for damage resulting from terrorist acts.”
The relevant part of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette of the Republic of Croatia nos. 53/1991, 91/1992, 112/1999 and 117/2003) provides:
“Proceedings shall be stayed:
...
(6) where another statute so prescribes.”
The Damage from Terrorist Acts and Public Demonstrations Act 2003 (Zakon o odgovornosti za štetu nastalu uslijed terorističkih akata i javnih demonstracija, Official Gazette of the Republic of Croatia no. 117/2003) provides, inter alia, that the Republic of Croatia is to provide compensation in relation to damage resulting from bodily injury, impairment of health or a death. All compensation for damage to property is to be sought under the Reconstruction Act.
The relevant parts of the Reconstruction Act (Zakon o obnovi, Official Gazette of the Republic of Croatia nos. 24/1996, 54/1996, 87/1996 and 57/2000) provide that the means for reconstruction are to be granted to persons whose property was destroyed in the war. The request is to be submitted to the Ministry for Public Works, Reconstruction and Construction (Ministarstvo za javne radove, obnovu i graditeljstvo).


ITEMID: 001-22731
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: SOYSEVER v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Ireneu Cabral Barreto;Mark Villiger
TEXT: The applicant, Mr Murat Soysever, is a Turkish national, who was born in 1969 and lives in Ankara. He was represented before the Court by Mr Muharrem Turan and Mr Akif Erol, lawyers practising in Istanbul.
The facts of the case, as submitted by the parties, may be summarised as follows.
Following an administrative ordinance issued by the General Staff (Genel Kurmay Başkanlığı) on 20 June 1995 the applicant and his family were denied to access to the military premises on the grounds that a photo showing his wife wearing an Islamic scarf was not acceptable for the military and social security identity cards. The applicant’s close relatives wearing Islamic scarves were also not allowed into the military buildings.
On 1 August 1997 the Supreme Military Council (Yüksek Askeri Şura) decided to discharge the applicant from the army on grounds of acts of “insubordination and immoral conduct” pursuant to Article 94(b) of Law 926.
The Government submit the following in the light of the intelligence reports concerning the applicant:
The applicant, a sergeant, was a member of the Fethullah Gülen’s Nurcu sect. He was involved in disseminating the ideology of the sect. He had an antisocial character and his wife wore an Islamic scarf.
His superiors considered him an insubordinate and undisciplined soldier. He was sentenced to two days’ confinement for disobeying his superiors and fourteen days’ confinement for disobeying orders. He was deprived of leave for being late to duty and received written warnings for negligence.
A committee of nine members of the armed forces concluded, in the light of the findings of the above intelligence reports, that the applicant had breached military discipline and that he should be discharged from the army. Subsequently, the Supreme Military Council based its decision on that opinion.
The relevant provisions of the Constitution are as follows:
“None of the rights and freedoms set forth in the Constitution may be exercised with the aim of undermining the territorial integrity of the State or the indivisible unity of its people, imperilling the existence of the Turkish State and the Republic, abolishing fundamental rights and freedoms, handing over control of the State to a single individual or group or bringing about the dominance of one social class over the others, establishing discrimination on the grounds of language, race, religion or adherence to a religious sect or setting up by any other means a State order based on such beliefs and opinions.”
“Everyone shall have the right to freedom of conscience, faith and religious belief. Prayers, worship and religious services shall be conducted freely, provided that they do not violate the provisions of Article 14. No one shall be compelled to participate in prayers, worship or religious services or to reveal his religious beliefs and convictions; nor shall he be censured or prosecuted because of his religious beliefs or convictions.
...
No one may exploit or abuse religion, religious feelings or things held sacred by religion in any manner whatsoever with a view to causing the social, economic, political or legal order of the State to be based on religious precepts, even if only in part, or for the purpose of securing political or personal influence thereby.”
“All acts or decisions of the administration are subject to judicial review ...
Decisions of the President of the Republic concerning matters within his sole jurisdiction and decisions of the Supreme Military Council shall not be subject to judicial review.
...”
Article 129 §§ 2, 3 and 4 of the Constitution provides that a disciplinary action cannot be imposed to the civil servants provided that that the right to defence is respected. Moreover, it lays out that the disciplinary actions, other that the warnings and the reprimands are subject to legal control. The provisions concerning the soldiers are reserved. Article 21 of Law on the Military Administrative High Court stipulates that the disciplinary actions imposed to the soldiers are not subject to legal control.
Section 22 (c) of the Military Legal Service Act provides:
“Irrespective of length of service, servicemen whose continued presence in the armed forces is adjudged to be inappropriate on account of breaches of discipline or immoral behaviour on one of the grounds set out below, as established in one or more documents drawn up during their service in the last military rank they held, shall be subject to the provisions of the Turkish Pensions Act.
...
Where their conduct and attitude reveal that they have adopted unlawful opinions.”
Section 50 (c) of the Military Personnel Act provides:
“Irrespective of length of service, servicemen whose continued presence in the armed forces is adjudged inappropriate on account of breaches of discipline and immoral behaviour shall be subject to the provisions of the Turkish Pensions Act. The Regulations for Military Personnel shall lay down which authorities have jurisdiction to commence proceedings, to examine, monitor and draw conclusions from personnel assessment files and to carry out any other act or formality in such proceedings. A decision of the Supreme Military Council is required to discharge an officer whose case has been submitted by the Chief of Staff to the Supreme Military Council.”
Section 94 (b) of the Military Personnel Act provides:
“(b) Discharge from the army for the acts of insubordination and immoral conduct:
Notwithstanding the seniority in the service, the non-commissioned officers whose maintenance is considered to be inappropriate for the acts of insubordination and immoral conduct are subject to Law on the Turkish Pension Fund. The investigation, examination and follow-up of the notation reports and the formalities and the competent authorities fulfilling these duties are subject to the provisions of The Regulations on assessment of officers and non-commissioned officers. The General Staff determines which non-commissioned officers’ cases concerning their discharge from the army should be examined by the Supreme Military Council.”
Article 99 of the Regulations on assessment of officers and non-commissioned officers provides:
“Irrespective of length of service, the compulsory retirement procedure shall be applied to all servicemen whose continued presence in the armed forces is adjudged to be inappropriate on account of breaches of discipline or immoral behaviour on one of the grounds set out below, as established in one or more documents drawn up during their service in the last military rank they held:
...
(e) where by his conduct and attitude the serviceman concerned has provided evidence that he holds unlawful, subversive, separatist, fundamentalist and ideological political opinions or takes an active part in the propagation of such opinions.”


ITEMID: 001-57631
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 1990
DOCNAME: CASE OF OBERMEIER v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of Art. 6-1;Not necessary to examine Art. 13 and 14;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
JUDGES: N. Valticos
TEXT: 8. Mr Karl Obermeier, who resides at Linz, was formerly employed by a private insurance company ("the company") as the director of their regional branch office for Upper Austria.
9. In 1974 a dispute arose between the applicant and the company concerning various paid activities which it proposed to withdraw from him. Mr Obermeier instituted proceedings in the Vienna Labour Court (Arbeitsgericht). On 10 March 1978, the day following the first hearing, he was suspended from his duties by his employer; the company considered that it was entitled to take such a decision at any time without giving reasons.
10. After having unsuccessfully sought the opening of disciplinary proceedings, the applicant decided to challenge his suspension in the courts. Accordingly, on 9 March 1981, he brought, in the Linz Labour Court, an action for a declaratory judgment (Feststellungsklage) and, in the alternative, an action for performance (Leistungsklage). The first action was intended to establish the invalidity of the contested measure, while the second sought its revocation. He alleged in particular that the measure in question was designed to penalise him for having instituted legal proceedings against the company and was therefore unjustified.
11. On 23 April 1981 the Linz Labour Court dismissed the applicant’s claims. On 25 November 1981 the Linz Regional Court (Landesgericht) allowed Mr Obermeier’s appeal as regards the part of the judgment concerning the revocation of the suspension. It considered that by virtue of clause 32 of the collective agreement for insurance employees (see paragraph 45 below), which was applicable, suspension of an employee was subject to certain conditions and that the first-instance court should have ascertained whether they were satisfied. The fact that Mr Obermeier had instituted legal proceedings against his employer could not in itself justify the impugned measure. The court dismissed the remainder of the appeal, finding that, under Article 228 of the Code of Civil Procedure (Zivilprozessordnung), a declaratory judgment may bear only on the existence of a legal relationship (Rechtsverhältnis) and not on the validity of a legal measure (Rechtshandlung) such as the suspension of an employee.
12. The company appealed on points of law to the Supreme Court (Oberster Gerichtshof) which, on 30 March 1982, upheld the Regional Court’s judgment. The case was therefore remitted to the Labour Court.
13. In the meantime the company had decided to terminate Mr Obermeier’s employment, his dismissal taking the form of "administrative retirement" (administrative Pensionierung). This decision, taken pursuant to clause 33 § 9 of the collective agreement (see paragraph 44 below), was notified to him on 14 July 1981 and was due to become operative on 31 March 1982.
14. Previously, on 8 May 1981, the company had, as it was required to do under section 8 § 2 of the Disabled Persons (Employment) Act (Invalideneinstellungsgesetz, see paragraph 47 below), sought the authorisation of the Disabled Persons Board (Invalidenausschuss, "the Board") for the applicant’s dismissal. On 21 May 1980 Mr Obermeier had been declared disabled for the purposes of that Act.
15. The Board took the view that section 8 § 2 left the decision concerning the authorisation in question to its discretion but that it had to exercise that discretion in accordance with the spirit of the Act, in other words taking account of the legitimate interest of the employer in the dismissal and the employee’s special need for social protection. Following a hearing, the Board gave its consent to the dismissal on 8 July 1981, finding that the relationship of trust between the parties had been irremediably undermined.
16. Mr Obermeier appealed against this decision, alleging inter alia that the Board had failed to hold an inquiry into the case and had obtained only the company’s observations. The Provincial Governor (Landeshauptmann) for Upper Austria confirmed the Board’s decision on 16 October 1981, after proceedings in which no argument was taken.
17. The applicant then appealed to the Administrative Court (Verwaltungsgerichtshof) which dismissed his appeal on 9 March 1983. It considered that the authorisation for his dismissal given by the Board and confirmed on appeal was not unlawful since it was not vitiated by errors of law; the contested decision had not exceeded the discretionary power which the law conferred on the administrative authorities in this field (see paragraph 53 below). It added that the procedural requirements had been complied with in the administrative proceedings, in particular as regards Mr Obermeier’s access to the file.
18. The applicant sought relief from the Administrative Court’s judgment by an application (no. 10247/83) to the European Commission of Human Rights, which was declared inadmissible on 12 March 1986 (Decisions and Reports no. 46, pp. 77-80).
19. Simultaneously with the administrative proceedings relating to the authorisation for the applicant’s dismissal, the Linz Labour Court resumed consideration of his suspension, following the Supreme Court’s decision remitting the case to it (see paragraph 12 above).
20. The company pleaded Mr Obermeier’s lack of a legal interest (Rechtsschutzbedürfnis) in the revocation of his suspension, since in the meantime he had been dismissed. The applicant, for his part, challenged the lawfulness of his dismissal. He stressed in particular that it had been pronounced before the authorisation from the Disabled Persons Board had become final, as the case was still pending before the Administrative Court.
21. On 9 December 1982 the court rejected the applicant’s claim. The dismissal had been pronounced with the authorisation of the competent administrative authority and the proceedings in the Administrative Court did not have suspensive effect. On 11 May 1983 the Linz Regional Court upheld this judgment, observing that, in the intervening period, the Administrative Court had dismissed Mr Obermeier’s appeal.
22. The applicant appealed on points of law to the Supreme Court which, on 23 October 1984, quashed the decisions of the labour courts. Overruling its previous case-law, it found that the company should have waited until the Disabled Persons Board’s authorisation had become final (rechtskräftig). Since the applicant’s dismissal was therefore invalid, he had an interest in challenging his suspension; accordingly, the Supreme Court remitted the case to the Labour Court.
23. Following this judgment, the company sent to the applicant, on 21 December 1984, a further notification of dismissal, which was to take effect on 30 June 1985. On 9 January 1985 it requested the Disabled Persons Board for a retroactive authorisation for the dismissal pronounced on 14 July 1981. It alleged that the Supreme Court’s overruling of its own case-law had not been foreseeable and therefore constituted an exceptional case for the purposes of section 8 § 2 of the Disabled Persons (Employment) Act.
24. On 14 March 1985 the Board rejected the company’s request on the ground that its decision of 8 July 1981 (see paragraph 15 above) had final effect (Rechtskraft). On appeal by both parties, the Provincial Governor set aside this decision on 17 June 1985 and gave his retroactive consent to the applicant’s first dismissal.
25. On 23 July 1985 the applicant appealed on points of law to the Constitutional Court (Verfassungsgerichtshof) which, on 25 November 1985, referred the case to the Administrative Court. The latter court allowed the appeal on 21 May 1986, finding that the company had committed an error of law by dismissing Mr Obermeier before the authorisation had become final. Consequently, on 1 June 1986, the Provincial Governor confirmed the Board’s decision of 14 March 1985.
26. Mr Obermeier then asked the Board to declare, pursuant to sections 8 to 12 of the Disabled Persons (Employment) Act, that his employment contract subsisted. The Board and the Provincial Governor found, on 10 February 1986 and 12 January 1987 respectively, that they lacked jurisdiction to make such a declaration, the matter being one for the ordinary courts.
27. Following the Supreme Court’s order of 23 October 1984 remitting the applicant’s case to it (see paragraph 22 above), the Linz Labour Court allowed the applicant’s claim on 30 January 1985. In its view, the legal proceedings instituted against the company by Mr Obermeier were in no way vexatious and therefore did not justify a measure of suspension, by which the employer had prejudged the outcome of the proceedings pending.
28. On 31 July 1985, on an appeal by the company, the Linz Regional Court set aside this decision, notwithstanding the applicant’s request for a stay pending the decisions of the Constitutional Court and the Administrative Court (see paragraph 25 above). The Regional Court considered itself bound by the Provincial Governor’s decision of 17 June 1985 authorising Mr Obermeier’s dismissal as from 31 March 1982 (see paragraph 24 above). It concluded therefrom that the applicant no longer had any legal interest in obtaining the revocation of his suspension.
29. On 15 July 1986 the Supreme Court dismissed the applicant’s appeal on points of law lodged on 7 October 1985. It found that the Regional Court had been correct in regarding the Provincial Governor’s authorisation as binding; since only the administrative authorities were competent to apply the Disabled Persons (Employment) Act, those authorities were not bound by the opinion expressed by the Supreme Court in its judgment of 23 October 1984 (see paragraph 22 above) that the conditions laid down in section 8 § 2 of the Act in question for the granting of retroactive authorisation were not satisfied. The Supreme Court stated that it was not for the civil courts to review the decisions of the administrative authorities. On the contrary, they were required to base their own judgments on such decisions, without any further examination.
In its judgment, the Supreme Court did not take into account the applicant’s appeal to the Constitutional Court and the Administrative Court. Indeed it seems to have been unaware of the Administrative Court’s judgment of 21 May 1986 (see paragraph 25 above).
30. Simultaneously with the administrative proceedings instituted by him, Mr Obermeier also challenged his dismissal in the labour courts. On 16 August 1982 he brought an action in the Linz Labour Court for a declaration that his dismissal was invalid. He argued that the company had not waited until the authorisation given by the Disabled Persons Board had become final in law and had in addition failed to inform the works council, as it was required to do under section 105 § 1 of the Industrial Relations Act (Arbeitsverfassungsgesetz, see paragraph 46 below).
31. After having stayed these proceedings on 9 December 1982, the court dismissed Mr Obermeier’s action on 14 August 1985 on the ground that, in the meantime, the Provincial Governor had given his retroactive consent to the applicant’s dismissal from employment (see paragraph 24 above). The parties did not appeal from this decision.
32. Following the Administrative Court’s judgment of 21 May 1986 (see paragraph 25 above), the applicant filed an application on 22 July 1986 for the proceedings to be reopened (Wiederaufnahmsklage) and requested that such proceedings also deal with the second dismissal from employment. The Linz Labour Court’s judgment of 24 September 1986, which allowed this application, was upheld on 3 February 1987 by the Linz Court of Appeal (Oberlandesgericht) and, on 15 July 1987, by the Supreme Court.
33. Ruling on the merits on 15 September 1987, the Labour Court found that Mr Obermeier had never been validly dismissed. It took the view that the effects of the prior authorisation given by the Board were not permanent and that such authorisation could provide the legal basis only for a dismissal which was closely linked to it both in terms of the period of time which had elapsed and as regards the substance; this was not the case in respect of the second dismissal.
34. On an appeal by the company, the Linz Court of Appeal set aside this decision on 15 March 1988 on the ground that the situation was a continuous one so that there was a sufficient connection between the consent given by the administrative authority and the dismissal from employment pronounced on 21 December 1984.
35. The applicant claimed that he had cited at the hearing, as an additional ground for the invalidity of his dismissal, disregard of clause 33 § 9 of the collective agreement (see paragraph 44 below), which requires the valid consent of the works council. The transcript of the hearing, notified to the applicant on 31 March 1988, did not refer to his statements in this respect; he therefore lodged an objection to it on 5 April 1988, which the Court of Appeal dismissed on 12 April as out of time.
36. In the meantime, the applicant had appealed on a point of law against the Court of Appeal’s judgment of 15 March 1988 (see paragraph 34 above). On 23 June 1988 in a supplementary memorial he stressed that for his second dismissal no valid prior consent had been obtained from the works council as was required under clause 33 § 9 of the collective agreement.
37. The Supreme Court dismissed the appeal on 29 June, holding that section 105 of the Industrial Relations Act, by virtue of which any dismissal from employment without prior consultation of the works council is invalid, did not apply to a disabled person. In such cases the consultation of the works council had already been effected by the interposition of the Board, acting in pursuance of section 8 § 2 of the Disabled Persons (Employment) Act. The Supreme Court declared the memorial of 23 June inadmissible under the rule that only one appeal may be lodged (Grundsatz der Einmaligkeit des Rechtsmittels, see paragraph 60 below).
38. On 30 June 1988, even before a copy of the Supreme Court’s judgment had been served on him, the applicant instituted new proceedings in the Linz Regional Court, sitting as a social and labour court. He sought a declaration that the second dismissal was void on the ground that the company had not obtained the prior consent of the works council, as it was required to do under clause 33 § 9 of the collective agreement. The court dismissed the action on 23 September 1988, finding that the agreement given by the works council in 1981 was also valid in relation to the 1984 dismissal.
The Court of Appeal, and subsequently the Supreme Court, dismissed Mr Obermeier’s appeals on 28 February and 14 June 1989 respectively.
39. On 21 March 1989 the applicant applied again to the Linz Regional Court for a declaration that the dismissal of 21 December 1984 and the authorisation given by the administrative bodies were void as being contrary to honest practices (Sittenwidrigkeit). On 12 May 1989 the court rejected the claim. It took the view that the administrative organs in question had, by implication, expressed their opinion on the matter by giving their agreement pursuant to section 8 § 2 of the Disabled Persons (Employment) Act, because an authorisation accorded for a dismissal contrary to honest practices would have been inconsistent with the criteria which the Administrative Court had laid down for the validity of such decisions. On 10 October 1989 the Linz Court of Appeal upheld this judgment. On appeal on points of law by Mr Obermeier, the Supreme Court quashed these two decisions but dismissed his application on 14 March 1990, on the ground that the judicial decisions which had closed the proceedings in which the applicant had already contested the validity of his dismissal in the labour courts (see paragraphs 30-38 above) were final.
40. In the intervening period, Mr Obermeier had, on 22 July 1986, applied to the labour courts for the reopening of the proceedings concerning his suspension, proceedings which had been terminated by the Supreme Court on 15 July 1986 (see paragraph 29 above). He relied on the judgment delivered by the Administrative Court on 21 May 1986 (see paragraph 25 above).
41. On 15 October 1986 the Regional Court dismissed the application for the proceedings to be reopened, on procedural grounds. However, on 15 July 1987 the Supreme Court allowed the applicant’s appeal on points of law and remitted the case to the Linz Court of Appeal which had acquired jurisdiction by virtue of a new Act on the social and labour courts.
42. On 19 November 1987 the Linz Court of Appeal ordered the proceedings to be reopened but allowed the company’s application for a stay pending the conclusion of the proceedings concerning the dismissal of 21 December 1984. It did so despite the protracted nature of the proceedings, because the decision on the dismissal was clearly crucial to the suspension proceedings. The proceedings remain stayed.
43. Employment contracts are governed by the general law of contract (Articles 859 et seq. of the Civil Code, Allgemeines Bürgerliches Gesetzbuch) and in particular by the provisions on contracts for services (Dienstvertrag, Articles 1151 et seq. of the Code), supplemented by the Private Employees Act (Angestelltengesetz, Bundesgesetzblatt no. 292/1921 as amended). Section 27 of that Act provides that a person may be dismissed only on certain specific grounds, which it lists.
44. As a general rule, employment contracts are concluded on the basis of collective agreements (Kollektivverträge), whose terms form part of the conditions of employment, unless otherwise stipulated in the individual contract. The Collective Agreement for Administrative Employees of Insurance Undertakings (Kollektivvertrag für Angestellte der Versicherungsunternehmen - Innendienst), which was applicable in this instance, lays down the principle that, with very few exceptions, a permanent employee may be dismissed only after disciplinary proceedings (clause 33 § 4). One of the exceptions is "administrative retirement" (administrative Pensionierung), provided for in clause 33 § 9. Among the conditions to which such a measure is subject is the prior consent of the works council.
45. Clause 32 of the agreement concerns "suspension" (Suspendierung), and is worded as follows:
"(1) Suspension does not constitute a penalty, but is a preventive administrative measure which may be imposed by management in the following cases:
(a) where a criminal or disciplinary investigation is being conducted against an employee;
(b) where there has been a gross failure to show due respect and proper deference to hierarchical superiors;
(c) where it appears necessary on grounds of safety at work and in the interests of the undertaking.
(2) During the period of his suspension, the employee shall continue to be paid his salary. In addition he shall continue to be entitled to promotion on grounds of seniority."
46. The dismissal of employees is governed in principle by section 105 of the Industrial Relations Act (Arbeitsverfassungsgesetz, Bundesgesetzblatt no. 22/1974). The version applicable at the material time provided as follows:
"Appeal against dismissal
(1) Before dismissing an employee, an employer shall notify the works council, which may comment within five working days.
(2) If so requested by it, the employer shall discuss the dismissal with the works council within the five days allowed for comment. Any dismissal prior to expiry of this period shall be invalid, unless the works council has already stated its position.
(3) If the works council has not expressly authorised the proposed dismissal within the period specified in paragraph (1), application may be made to the conciliation board to set it aside, if
1. ...
2. the dismissal is not justified from a social point of view and the dismissed employee has already been in the employ of the undertaking for six months. Dismissal is unjustified from a social point of view when it damages the employee’s vital interests, unless the employer can show that it is due to
(a) circumstances relating to the employee personally and which are detrimental to the interests of the undertaking or
(b) business requirements which militate against his continued employment.
...
In the examination as to whether a dismissal is unjustified from a social point of view, special attention shall be given in the case of older employees to the fact that they have been employed without a break for many years in the undertaking or the company of which the undertaking is part, and to the difficulties that they may be expected to encounter in finding new employment because of their age.
(4) The employer is required to give the works council notice of the dismissal. If it has expressly objected to the proposed dismissal, the works council may, within one week of being notified, contest it before the conciliation board at the dismissed employee’s request. If the works council does not act on the employee’s request and contest the dismissal, he may himself do so before the conciliation board within the week following expiry of the time-limit laid down for the works council.
(5) ...
(6) If the conciliation board grants the application, the dismissal shall be invalid. The conciliation board’s decision shall be final."
The conciliation board operates as a labour court.
47. Article 8 of the Disabled Persons (Employment) Act (Invalideneinstellungsgesetz, Bundesgesetzblatt no. 22/1970, as amended), provides as follows:
"Dismissal
(1) Except in cases where a longer period of notice is required, a disabled person who enjoys special status and is dismissed by his employer shall be entitled to four weeks notice. ...
(2) A ... person [in this category] may only be dismissed by his employer if the Disabled Persons Board, ..., after having consulted the works council ..., has given its consent; the employee shall have the status of a party in these proceedings. Without prejudice to legal provisions imposing additional conditions on termination of employment, any dismissal pronounced without the prior authorisation of the Disabled Persons Board shall be invalid unless the Board gives its consent retroactively in exceptional circumstances. Section 105 §§ 2 to 6 of the Industrial Relations Act (Bundesgesetzblatt no. 22/1974) shall not apply to the dismissal of disabled persons enjoying special status."
48. Unless otherwise provided for in the Disabled Persons (Employment) Act, the procedure before the Disabled Persons Board and, on appeal, before the second-instance authority is governed by the Code of General Administrative Procedure (Allgemeines Verwaltungsverfahrensgesetz, Bundesgesetzblatt no. 172/1950, as amended).
49. Under section 19a of the Act, appeals from the Board’s decisions are heard by the Provincial Governor (Landeshauptmann), acting as a delegated authority of the federal administration (mittelbare Bundesverwaltung) within the meaning of Article 103 of the Federal Constitution (Bundesverfassungsgesetz). In this capacity, he is subject to instructions (Weisungen) from the Federal Minister for Social Affairs (Bundesminister für Soziale Verwaltung - Article 103 § 1 in conjunction with Article 20 § 1 of the Federal Constitution).
50. An appeal to the Provincial Governor has suspensive effect by virtue of Article 64 of the Code of General Administrative Procedure.
51. The resulting decision is deemed to be final (formell rechtskräftig) although it may be challenged in the Administrative Court (Verwaltungsgerichtshof) and in the Constitutional Court (Verfassungsgerichtshof) pursuant, respectively, to Articles 131 and 144 of the Federal Constitution. Such appeals do not have suspensive effect, unless the relevant courts decide otherwise (section 30 of the Administrative Court Act (Verwaltungsgerichtshofgesetz), Bundesgesetzblatt no. 10/1985, and section 85 of the Constitutional Court Act (Verfassungsgerichtshofgesetz), Bundesgesetzblatt no. 85/1953).
52. The Administrative Court declares the decision void if it does not dismiss the appeal as unfounded; it rules on the merits only if the competent authority has failed in its duty to render a decision (section 42 § 1 of the Administrative Court Act).
Where it has to review the lawfulness of an administrative measure, the Administrative Court bases its decision on the facts established by the relevant authority, with reference solely to the complaints submitted, except where the authority in question lacked jurisdiction or where procedural rules have been infringed (section 41 of the above-mentioned Act). In this connection the Act specifies that the Administrative Court is to declare void the impugned measure for infringement of such a rule where the facts found by the authorities are not borne out, on an important point, by the evidence, where the facts thus determined have to be supplemented on such a point and where there is a failure to comply with rules which, if they had been correctly applied, could have resulted in a different decision (section 42 § 2 (3) of the Act).
If in the course of such an examination grounds emerge which were hitherto unknown to the parties, the Administrative Court has to hear the parties and, if necessary, stay the proceedings (section 41 § 1).
The procedure involves essentially an exchange of memorials (section 36), followed, except in certain cases listed in the Act, by a hearing conducted under the adversarial principle in the presence of the parties concerned and, as a rule, held in public (sections 39 and 40).
53. Article 94 of the Constitution stipulates in addition that at all levels of jurisdiction the administrative authorities must be separate from the courts.
Article 130 § 2 of the Constitution applies where the Administrative Court has to review the lawfulness of an administrative measure taken in the exercise of a discretionary power which the law confers on the competent authority; it provides as follows:
"There is no ground for a finding of unlawfulness (Rechtswidrigkeit) where the legislature has refrained from laying down binding rules for the conduct of the administrative authority and leaves it to that body to determine its own conduct and the authority in question has used this discretionary power in accordance with the law."
54. Until the entry into force of the Labour and Social Courts Act (Arbeits- und Sozialgerichtsgesetz, Bundesgesetzblatt no. 104/1985) on 1 January 1987, the proceedings in the present case were governed by the Labour Courts Act (Arbeitsgerichtsgesetz, Bundesgesetzblatt no. 170/1946, as amended).
This Act provided for first-instance labour courts, sitting for the same areas as district courts (Bezirksgerichte; section 6). Appeal lay to the ordinary civil courts in other words the Regional Courts and the Supreme Court, which courts, set up special chambers for this purpose (sections 25 § 2 and 26). The new legislation conferred jurisdiction in labour disputes on special chambers of the Regional Courts - except in Vienna - the Courts of Appeal and, for appeals on points of law, to the Supreme Court (section 2).
55. Under the former legislation, on appeal a case was reheard and the parties could adduce new facts and new evidence (section 25 § 1). In line with the principles governing appeal procedures in general, under the legislation in force since 1 January 1987 this is only possible subject to certain conditions (section 63 of the Social and Labour Courts Act). In addition, proceedings concerning labour and social disputes are to be conducted with particular diligence according to the new Act (section 39 § 1). Except as otherwise provided, such proceedings are governed by the rules of the Code of Civil Procedure (Zivilprozessordnung).
56. By virtue of Article 228 of this Code, an action for a declaratory judgment (Feststellungsklage) may be brought to establish the existence or non-existence of a legal relationship or a right (Bestehen oder Nichtbestehen eines Rechtsverhältnisses oder Rechtes) if the applicant has a legal interest (rechtliches Interesse) in this issue. The law does not expressly require such interest for actions brought to secure performance (Leistungsklagen), but it is generally considered to be a necessary condition for any court action.
57. As regards preliminary issues giving rise to separate proceedings still pending, Article 190 of the Code provides as follows:
"Stay of proceedings pending the decision on preliminary issues
(1) Where the determination of a dispute depends wholly or in part on the existence or non-existence of a legal relationship which is the subject of other legal proceedings pending or which is to be established in administrative proceedings pending, the Chamber may stay the main proceedings until such time as a final decision concerning the legal relationship in question has been given.
(2) ...
(3) When a final decision has been reached in the judicial or administrative proceedings in question, the main proceedings shall be resumed on application by the parties or of the court’s own motion."
It follows that the court must decide the preliminary issue itself if that issue has not given rise to separate proceedings which are pending. It has a discretionary power to do so even if such proceedings are pending. Once the decision on the preliminary issue has been rendered by the relevant judicial or administrative authority and has become final, it is generally considered to be binding on the court.
Article 38 of the Code of General Administrative Procedure contains an identical provision regarding the administrative authorities.
58. Article 530 of the Code of Civil Procedure provides for the possibility of reopening civil proceedings (Wiederaufnahmsklage) under certain conditions:
"Application for proceedings to be reopened
(1) Proceedings which have been terminated by a decision on the merits may be reopened on an application by a party:
1.-4. ...
5. where a criminal judgment on which the decision is based has subsequently been quashed by another judgment which has become final;
6. where the party concerned finds himself, or becomes, able to use a previous judgment which has become final and which concerns the same claim or the same legal relationship and determines with final effect the dispute between the parties in the proceedings which are to be reopened;
7. where the party concerned either learns of new facts, or where he finds himself, or becomes, able to adduce evidence which, if it had been submitted and used in the earlier proceedings, would have resulted in a more favourable decision for him;
(2) The application for proceedings to be reopened on the grounds referred to in paragraphs 6 and 7 shall be admissible only in so far as the party who makes the application was not in a position, without there being any fault on his part, to rely on the judgment which has become final or the new facts or evidence before the conclusion of the oral proceedings resulting in the first-instance decision."
59. In the present case (see paragraphs 32 and 41 above), the Supreme Court made it clear that in the event of the quashing or subsequent variation of an administrative decision which had become final, and which was regarded as binding by the courts, an application for the proceedings to be reopened was admissible by analogous application of Article 530 § 1, no. 5.
60. In general, the Supreme Court hears appeals on points of law in private session (Article 509 of the Code of Civil Procedure) on the basis of the file (Article 508). It takes account of new facts or evidence only and strictly in so far as they are admissible and in addition have been cited in the appeal memorial or the reply (Articles 504 § 2 and 507 § 3 - Neuerungsverbot). Moreover, Austrian law applies the principle of "a single appeal" (Grundsatz der Einmaligkeit der Rechtsmittels) which precludes the submission of supplementary memorials. The Supreme Court normally determines the merits of the case. It may remit the case to the lower courts only subject to certain conditions (Article 510), for example where the proceedings appealed against were flawed in such a way as to prevent a full discussion or thorough examination of the dispute (Article 503 no. 2).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1