ITEMID: 001-105524
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: COMMITTEE
DATE: 2011
DOCNAME: CASE OF JUREWICZ v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Lech Garlicki;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 4. The applicant was born in 1981 and lives in Warsaw.
5. On 19 April 2006 the applicant was charged with an unspecified offence.
6. On 9 August 2006 the Prosecutor changed the original charges and charged the applicant with aggravated extortion. The applicant was additionally charged with drug trafficking committed between 2002 and 2003 in Warsaw.
7. On 3 January 2007 the prosecution lodged a bill of indictment with the Warsaw Regional Court (Sąd Okręgowy). The applicant was indicted as charged. The bill of indictment comprised charges against 17 accused.
8. On 21 May 2007 the court held the first hearing.
9. Hearings scheduled for 9, 10 and 18 July 2007 were adjourned because of the applicant’s counsel illness.
10. Between May 2007 and February 2010 the trial court held some 30 hearings.
11. On three occasions the applicant unsuccessfully sought the withdrawal of the judge dealing with his case.
12. The proceedings are still pending before the Warsaw Regional Court.
13. On 22 December 2009 the applicant lodged with the Warsaw Court of Appeal (Sąd Apelacyjny) a complaint under section 5 of the Law of 17 June 2004 on complaints about a breach of the right to an investigation conducted or supervised by a prosecutor and to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu przygotowawczym prowadzonym lub nadzorowanym przez prokuratora i postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”).
14. On 23 February 2010 the Warsaw Court of Appeal dismissed the applicant’s complaint stating that that the proceedings had been conducted with the requisite speed and without undue delay.
15. On 30 March 2009 the Warsaw Regional Court convicted the applicant of drug trafficking committed between 2002 and 2003 in Łowicz.
16. On 9 December 2010 the Warsaw Court of Appeal upheld the firstinstance court judgment.
17. On 8 January 2003 the applicant was arrested on suspicion of vehicle break-in and theft.
18. On 14 January 2004 the Warsaw District Court (Sąd Rejonowy) convicted the applicant of vehicle break-in and theft and sentenced him to three years’ and six months’ imprisonment.
19. On 20 May 2004 the Warsaw Regional Court dismissed the applicant’s appeal against this judgment.
20. On 17 April 2009 the applicant requested the Warsaw Regional Court to appoint a legal-aid lawyer with a view to lodging a cassation appeal.
21. On 6 February 2010 the legal-aid lawyer informed the applicant that he had not found any grounds for lodging a cassation appeal.
22. On an unspecified date, the applicant requested the court for leave to lodge a cassation appeal out of time and to appoint another legal-aid lawyer with a view to lodging a cassation appeal.
23. On 1 April 2010 the Warsaw Regional Court dismissed the applicant’s request finding no basis for retrospective leave. It further refused to appoint another legal-aid lawyer.
24. The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings, in particular the applicable provisions of the 2004 Act, are stated in the Court’s decisions in cases of Charzyński v. Poland no. 15212/03 (dec.), §§ 12-23, ECHR 2005-V and Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005-VIII and the judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-58128
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: GRANDCHAMBER
DATE: 1998
DOCNAME: CASE OF THE UNITED COMMUNIST PARTY OF TURKEY AND OTHERS v. TURKEY
IMPORTANCE: 2
CONCLUSION: Violation of Art. 11;Not necessary to examine Art. 9;Not necessary to examine Art. 10;Not necessary to examine Art. 14;Not necessary to examine Art. 18;Not necessary to examine P1-1;Not necessary to examine P1-3;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
JUDGES: C. Russo;John Freeland;N. Valticos;R. Pekkanen
TEXT: 7. The United Communist Party of Turkey (“the TBKP”), the first applicant, was a political party that was dissolved by the Constitutional Court (see paragraph 10 below).
Mr Nihat Sargın and Mr Nabi Yağcı, the second and third applicants, were respectively Chairman and General Secretary of the TBKP. They live in Istanbul.
8. The TBKP was formed on 4 June 1990. On the same day, its constitution and programme were submitted to the office of Principal State Counsel at the Court of Cassation for assessment of their compatibility with the Constitution and Law no. 2820 on the regulation of political parties (“Law no. 2820” – see paragraph 12 below).
9. On 14 June 1990, when the TBKP was preparing to participate in a general election, Principal State Counsel at the Court of Cassation (“Principal State Counsel”) applied to the Constitutional Court for an order dissolving the TBKP. He accused the party of having sought to establish the domination of one social class over the others (Articles 6, 10 and 14 and former Article 68 of the Constitution and section 78 of Law no. 2820), of having incorporated the word “communist” into its name (contrary to section 96(3) of Law no. 2820), of having carried on activities likely to undermine the territorial integrity of the State and the unity of the nation (Articles 2, 3 and 66 and former Article 68 of the Constitution, and sections 78 and 81 of Law no. 2820) and of having declared itself to be the successor to a previously dissolved political party, the Turkish Workers’ Party (section 96(2) of Law no. 2820).
In support of his application Principal State Counsel relied in particular on passages from the TBKP’s programme, mainly taken from a chapter entitled “Towards a peaceful, democratic and fair solution for the Kurdish problem”; that chapter read as follows:
“The existence of the Kurds and their legitimate rights have been denied ever since the Republic was founded, although the national war of independence was waged with their support. The authorities have responded to the awakening of Kurdish national consciousness with bans, oppression and terror. Racist, militarist and chauvinistic policies have exacerbated the Kurdish problem. That fact both constitutes an obstacle to the democratisation of Turkey and serves the interests of the international imperialist and militaristic forces seeking to heighten tension in the Middle East, set peoples against each other and propel Turkey into military adventures.
The Kurdish problem is a political one arising from the denial of the Kurdish people’s existence, national identity and rights. It therefore cannot be resolved by oppression, terror and military means. Recourse to violence means that the right to self-determination, which is a natural and inalienable right of all peoples, is not exercised jointly, but separately and unilaterally. The remedy for this problem is political. If the oppression of the Kurdish people and discrimination against them are to end, Turks and Kurds must unite.
The TBKP will strive for a peaceful, democratic and fair solution of the Kurdish problem, so that the Kurdish and Turkish peoples may live together of their free will within the borders of the Turkish Republic, on the basis of equal rights and with a view to democratic restructuring founded on their common interests.
The solution of the Kurdish problem must be based on the free will of the Kurds and take into account the common interests of the Turkish and Kurdish nations and contribute to the democratisation of Turkey and peace in the Middle East.
A solution to the Kurdish problem will only be found if the parties concerned are able to express their opinions freely, if they agree not to resort to violence in any form in order to resolve the problem and if they are able to take part in politics with their own national identity.
The solution of the Kurdish problem will require time. In the immediate future, priority must be given to ending military and political pressure on the Kurds, protecting the lives of Kurdish citizens, bringing the state of emergency to an end, abandoning the ‘village guards’ system and lifting bans on the Kurdish language and Kurdish culture. The problem should be freely discussed. The existence of the Kurds must be acknowledged in the Constitution.
Without a solution of the Kurdish problem, democratic renewal cannot take place in Turkey. Any solution will entail a fight for the democratisation of Turkey.”
Two other passages relied on by Principal State Counsel read as follows:
“... the United Communist Party of Turkey is the party of the working class, formed from the merger of the Turkish Workers’ Party and the Turkish Communist Party.
...
The cultural revival will be fashioned by, on the one hand, the reciprocal influence of contemporary universal culture and, on the other, Turkish and Kurdish national values, the heritage of the Anatolian civilisations, the humanist elements of Islamic culture and all the values developed by our people in their effort to evolve with their times.”
The Turkish Workers’ Party referred to above had been dissolved on 16 October 1981 on grounds similar to those relied on against the TBKP.
10. On 16 July 1991 the Constitutional Court made an order dissolving the TBKP, which entailed ipso jure the liquidation of the party and the transfer of its assets to the Treasury, in accordance with section 107(1) of Law no. 2820. The order was published in the Official Gazette on 28 January 1992. As a consequence, the founders and managers of the party were banned from holding similar office in any other political body (Article 69 of the Constitution and section 95(1) of Law no. 2820 – see paragraph 11 below).
The Constitutional Court firstly rejected the submission that the TBKP maintained that one social class, the proletariat, was superior to the others. Referring to the party’s constitution, modern works on Marxist ideology and contemporary political ideas, it held that the TBKP satisfied the requirements of democracy, which was based on political pluralism, universal suffrage and freedom to take part in politics.
The court also rejected the argument, based on section 96(2) of Law no. 2820, that no political party may claim to be the successor to a party that has previously been dissolved. In its view, it was entirely natural and consistent with the concept of democracy for a political party to claim the cultural heritage of past movements and currents of political thought. The TBKP had accordingly not infringed the provision relied on by reason only of its intention of drawing on the experience and achievements of Marxist institutions.
The Constitutional Court went on to hold that the mere fact that a political party included in its name a word prohibited by section 96(3) of Law no. 2820, as the TBKP had done in the present case, sufficed to trigger the application of that provision and consequently to entail the dissolution of the party concerned.
As to the allegation that the TBKP’s constitution and programme contained statements likely to undermine the territorial integrity of the State and the unity of the nation, the Constitutional Court noted, inter alia, that those documents referred to two nations: the Kurdish nation and the Turkish nation. But it could not be accepted that there were two nations within the Republic of Turkey, whose citizens, whatever their ethnic origin, had Turkish nationality. In reality the proposals in the party constitution covering support for non-Turkish languages and cultures were intended to create minorities, to the detriment of the unity of the Turkish nation.
Reiterating that self-determination and regional autonomy were prohibited by the Constitution, the Constitutional Court said that the State was unitary, the country indivisible and that there was only one nation. It considered that national unity was achieved through the integration of communities and individuals who, irrespective of their ethnic origin and on an equal footing, formed the nation and founded the State. In Turkey there were no “minorities” or “national minorities”, other than those referred to in the Treaty of Lausanne and the friendship treaty between Turkey and Bulgaria, and there were no constitutional or legislative provisions allowing distinctions to be made between citizens. Like all nationals of foreign descent, nationals of Kurdish origin could express their identity, but the Constitution and the law precluded them from forming a nation or a minority distinct from the Turkish nation. Consequently, objectives which, like those of the TBKP, encouraged separatism and the division of the Turkish nation were unacceptable and justified dissolving the party concerned.
11. At the material time the relevant provisions of the Constitution read as follows:
“The Republic of Turkey is a democratic, secular and social State based on the rule of law, respectful of human rights in a spirit of social peace, national solidarity and justice, adhering to the nationalism of Atatürk and resting on the fundamental principles set out in the Preamble.”
“The State of Turkey constitutes with its territory and nation, an indivisible whole. The official language is Turkish.”
“Sovereignty resides unconditionally and unreservedly in the nation.
...
Sovereign power shall not under any circumstances be transferred to an individual, a group or a social class...”
“All individuals shall be equal before the law without any distinction based on language, race, colour, sex, political opinion, philosophical belief, religion, membership of a religious sect or other similar grounds.”
“None of the rights and freedoms referred to in the Constitution shall be exercised with a view to undermining the territorial integrity of the State and the unity of the nation, jeopardising the existence of the Turkish State or Republic, abolishing fundamental rights and freedoms, placing the control of the State in the hands of a single individual or group, ensuring the domination of one social class over other social classes, introducing discrimination on the grounds of language, race, religion or membership of a religious sect, or establishing by any other means a political system based on any of the above concepts and opinions.”
“Everyone linked to the Turkish State by nationality shall be Turkish.”
“Citizens shall have the right to form political parties and to join them or withdraw from them in accordance with the lawful procedure laid down for the purpose...
Political parties shall be an indispensable part of the democratic political system.
Political parties may be formed without prior permission and shall carry on their activities in accordance with the Constitution and the law.
The constitutions and programmes of political parties shall not be inconsistent with the absolute integrity of State territory and of the nation, human rights, national sovereignty or the principles of a democratic secular Republic.
No political party shall be formed which aims to advocate or establish the domination of one social class or group, or any form of dictatorship...”
“Political parties shall not engage in activities other than those referred to in their constitutions and programmes, nor shall they disregard the restrictions laid down by Article 14 of the Constitution, on pain of permanent dissolution.
...
The decisions and internal running of political parties shall not be contrary to democratic principles.
...
Immediately a political party is formed, Principal State Counsel shall verify as a matter of priority that its constitution and programme and the legal position of its founding members are consistent with the Constitution and the laws of the land. He shall also monitor its activities.
Political parties may be dissolved by the Constitutional Court, on application by Principal State Counsel.
Founding members and managers, at whatever level, of political parties which have been permanently dissolved may not become founding members, managers or financial controllers of any new political party, nor shall a new party be formed if a majority of its members previously belonged to a party which has been dissolved ...”
12. The relevant provisions of Law no. 2820 on the regulation of political parties read as follows:
“Political parties
(a) shall not aim, strive or incite third parties to
change: the republican form of the Turkish State; the ... provisions concerning the absolute integrity of the Turkish State’s territory, the absolute unity of its nation, its official language, its flag or its national anthem; ... the principle that sovereignty resides unconditionally and unreservedly in the Turkish nation; ... the provision that sovereign power cannot be transferred to an individual, a group or a social class...;
jeopardise the existence of the Turkish State and Republic, abolish fundamental rights and freedoms, introduce discrimination on grounds of language, race, colour, religion or membership of a religious sect, or establish, by any means, a system of government based on any such notion or concept.
...
(c) shall not aim to defend or establish the domination of one social class over the other social classes or the domination of a community or the setting up of any form of dictatorship; they shall not carry on activities in pursuit of such aims...”
“Political parties shall not aim to change the principle of the unitary State on which the Turkish Republic is founded, nor carry on activities in pursuit of such an aim.”
“Political parties shall not
(a) assert that there exist within the territory of the Turkish Republic any national minorities based on differences relating to national or religious culture, membership of a religious sect, race or language; or
(b) aim to destroy national unity by proposing, on the pretext of protecting, promoting or disseminating a non-Turkish language or culture, to create minorities on the territory of the Turkish Republic or to engage in similar activities...”
“The constitution, programme and activities of political parties may not contravene the Constitution or this Law.”
“No political party shall be formed with the name ‘communist’, ‘anarchist’, ‘fascist’, ‘theocratic’ or ‘national socialist’, the name of a religion, language, race, sect or region, or a name including any of the above words or similar ones.”
“The Constitutional Court shall dissolve a political party where
(a) the party’s programme or constitution ... is contrary to the provisions of Chapter 4 of this Law; or
(b) its membership, central committee or executive committee ... take a decision, issue a circular or make a statement ... contrary to the provisions of Chapter 4 of this Law or the Chairman, Vice-Chairman or General Secretary makes any written or oral statement contrary to those provisions...”
“All the assets of political parties dissolved by order of the Constitutional Court shall be transferred to the Treasury.”
Chapter 4 of the Law, referred to in section 101, includes in particular sections 90(1) and 96(3), which are reproduced above.
VIOLATED_ARTICLES: 11


ITEMID: 001-72890
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF SHCHERBAKY v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of P1-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
JUDGES: Zoryana Bortnovska
TEXT: 4. The first applicant was born in 1953. The second applicant was born in 1962. They both reside in Kharkiv. They are former employees of the State Enterprise “Vilne Housing and Communal Property Authority” of the Dzhankoy District of the Autonomous Republic of Crimea (the “debtor”).
5. On 14 February 1999 the Dzhankoy City Court ordered the debtor to pay the applicants UAH 573.43 and UAH 256.12, respectively. The court issued separate judgments with respect to each applicant on 6 March and 7 April 1999.
6. On 24 February 1999 the Dzhankoy Bailiffs’ Service (the “DBS”) initiated the enforcement proceedings in the case.
7. On 29 September 1999 the Dzhankoy City Court awarded the first applicant UAH 140.60 in child support arrears.
8. On 2 September 2000 the Crimean Department of Justice of the Ministry of Justice informed the applicants that the enforcement proceedings were still pending.
9. On 20 August 2001 the DBS attached the debtor’s bank accounts. Certain enforcement actions were undertaken by the DBS from 26 November 2001 to 26 January 2004 (attachment of the debtor’s funds, sale of its property, etc.).
10. On 26 January 2004 the applicants had been fully paid the salary arrears due to them and the judgments had thus been enforced.
11. On 29 January 2004 the DBS terminated the enforcement proceedings in the applicants’ case.
12. The relevant domestic law is summarised in the judgment of Romashov v. Ukraine (no. 67534/01, §§ 16-18, 27 July 2004).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-68064
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: HOOGENDIJK v. THE NETHERLANDS
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Gine Wilhelmina Elisabeth Hoogendijk, is a Netherlands national, who was born in 1935 and lives in Zeist. She is represented before the Court by Ms M.I. Steinmetz, a lawyer practising in Amsterdam. The respondent Government are represented by their Agent, Ms J. Schukking, of the Netherlands Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1960, after having undergone two knee operations, the applicant resigned from her full-time job. Continuing to suffer from pain, she felt that she was no longer capable of working full-time. She subsequently started to work on a freelance basis. Having married in 1962, the applicant stopped her freelance professional activities in 1964. The applicant and her husband separated in 1971 and divorced in 1972.
On 5 August 1976, given its then imminent entry into force, the applicant applied for benefits under the General Labour Disablement Benefits Act (Algemene Arbeidsongeschiktheidswet; “AAW”) on account of her incapacity for work as a result of the medical problems which she had experienced with her knees since 1960.
Her request was rejected on 8 September 1977 by the competent occupational association (bedrijfsvereniging) which found that her incapacity for work did not exceed 25%, i.e. the minimum level of incapacity for entitlement to AAW benefits. The applicant filed an appeal with the Amsterdam Appeals Tribunal (Raad van Beroep), arguing that, in addition to knee problems, her incapacity was also due to psychiatric problems, for which she had begun treatment in March 1972.
Pending those appeal proceedings, the occupational association reconsidered its decision on the basis of the conclusions of psychiatric and orthopaedic examinations of the applicant. These examinations had been requested by the Appeals Tribunal and the results were submitted to the social security medical experts. According to the latter, the applicant was suffering from more severe psychiatric/social problems than had initially been assumed. On 23 May 1979 the occupational association informed the applicant that it had withdrawn its decision of 8 September 1977. Finding that the applicant was 80-100% incapacitated for work on 1 October 1976, i.e. the date on which the AAW entered into force, she was granted AAW benefits corresponding to that level.
On 18 January 1990 the social security authorities informed the applicant that, pursuant to the Act of 3 May 1989 (see below under “Relevant domestic law”), AAW benefits would be withdrawn if a beneficiary had become incapacitated for work before 1 January 1979 without having earned any income from work in the year preceding the occurrence of the incapacity. As the applicant's incapacity had occurred on 1 March 1972 and as it did not appear that she had received an income from work during the preceding year, her benefits would be withdrawn from 1 June 1990.
By a decision of 21 September 1990 the social insurance authorities informed the applicant that, in view of the provisions of the Act of 4 July 1990 (see below under “Relevant domestic law”), the decision to withdraw her benefits from 1 June 1990 had been annulled. She was further informed that, although her benefits would be continued to be paid for the time being, in view of measures announced by the Government it remained possible that her benefits would be withdrawn from 1 July 1991.
On 26 March 1991 the social insurance authorities informed the applicant that, in application of Article IV of the Act of 3 May 1989 as amended by the Act of 4 July 1990, her AAW benefits would be withdrawn from 1 July 1991. On 24 April 1991 the applicant filed an appeal against this decision with the Arnhem Regional Court (arrondissementsrechtbank).
On 14 September 1992 the Acting President of the Arnhem Regional Court informed the applicant that the examination of her appeal would be adjourned pending the outcome of proceedings before the Central Appeals Tribunal (Centrale Raad van Beroep) in a similar case. On 26 August 1994 the Regional Court informed the applicant that, in similar cases pending before the Central Appeals Tribunal, the tribunal intended to put preliminary questions to the Court of Justice of the European Communities (ECJ). As the answer to those questions could be of importance for the applicant's case, her appeal would be adjourned pending the determination by the Central Appeals Tribunal of those similar cases, and this could take some time.
On 1 February 1996, the ECJ gave its ruling on the preliminary questions put by the Central Appeals Tribunal (see below under “Relevant domestic law”). This ruling was published in the Social Security Law Reports (Rechtspraak Sociaal Verzekeringsrecht – “RSV”) 1996/169.
On 26 March 1997, following a hearing held on 6 March 1997, the Arnhem Regional Court dismissed the applicant's appeal. It rejected the applicant's argument that she should be considered as having become incapacitated for work in 1960 and that, having been gainfully employed in the preceding year, she was thus eligible to retain her AAW benefits. On this point the Regional Court held:
“It appears from [the case file] that until 1960 the [applicant] worked as an interior designer... and subsequently, until 1964, worked occasionally as a freelance interior designer. The [applicant] married in 1962, her daughter was born in 1971 and she divorced in 1972.
On 5 August 1976 the [applicant] applied [for AAW benefits] indicating that she had been incapacitated for work since 1960. She appeared to have been suffering from knee problems for many years and had been operated on in 1960. It further appeared that she had been treated by a neurologist since 1972. In the course of the investigation [for AAW purposes] by the Joint Medical Examination Service (Gemeenschappelijke Medische Dienst) in 1977, the applicant told the social security medical officer that she had stopped working ... because her husband was providing the family income.
... Initially ... [the applicant's request for] benefits for incapacity for work was rejected because [the applicant] was considered fit to do work which spared her knees, but after a letter from [her] neurologist she was granted AAW benefits from 1 October 1976 (entry into force of AAW) on medical-psychological grounds. ...
The Regional Court does not find it established ... that the [applicant] has been uninterruptedly incapacitated for work to a relevant degree since 1960. It considers that, from 1959 onwards, work which would spare her knees was indicated to [the applicant] but, apart from the period in 1960 during which she underwent a knee operation, [the applicant] has not been incapable of undertaking gainful employment. In this connection the Regional Court points out that the [applicant] worked until 1964, albeit irregularly, and ceased to work on grounds which were not medical.
This leads the Regional Court to conclude that the defendant has correctly considered 1 March 1972 as the first day of [the applicant's] incapacity for work.
The Regional Court further finds it established that the [applicant] has not had any income from employment or in connection therewith in the year preceding 1 March 1972.”
On 21 April 1997 the applicant filed an appeal with the Central Appeals Tribunal against the decision of 26 March 1997. She argued, inter alia, that the Regional Court had unjustly found that she had not been incapacitated for work since 1960. She further argued that the decision violated her rights under Article 1 of Protocol No. 1 and Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1.
In its decision of 22 December 1999, following a hearing held on 1 December 1999, the Central Appeals Tribunal rejected the applicant's appeal. It noted that the applicant's AAW benefits had been withdrawn from 1 July 1991 because the applicant had not had any income from work in the year preceding the occurrence of her incapacity for work. It further noted that this decision was based on Article IV of the Act of 3 May 1989 as amended by the AAW Reparation Act (Reparatiewet AAW) of 4 July 1990. Under those provisions, eligibility for continued receipt of AAW benefits after 1 July 1991 by persons whose incapacity for work had occurred before 1 January 1979 was subject to the conditions set out in Article 6 of the AAW as worded following the entry into force of the Act of 20 December 1979. As regards the determination of the date on which the applicant's incapacity for work had occurred, the Central Appeals Tribunal accepted the Regional Court's ruling as correct and upheld its findings.
Relying, inter alia, on its findings in a decision of 11 April 1997 published in the Netherlands Administrative Law Reports 1997/242 (Administratiefrechtelijke Beslissingen – “AB”), in which it had examined the compatibility of Article IV of the AAW Reparation Act (see below under “Relevant domestic law”) with Article 14 of the Convention, the Central Appeals Tribunal rejected the applicant's complaint that the withdrawal of her AAW benefits was contrary to her rights under Article 14, without giving any additional reasons. Insofar as the applicant complained that the withdrawal of her benefits also violated her rights under Article 1 of Protocol No. 1, the Central Appeals Tribunal accepted that this withdrawal constituted a deprivation of property within the meaning of the second sentence of this provision. It noted that, according to the criteria established in the Court's case-law, a deprivation of property must strike a fair balance between the general interest of the community and the requirements of the protection of the individual's fundamental rights, and that there must be a reasonable relationship of proportionality between the means employed and the aim pursued. Moreover, a State enjoys a wide margin of appreciation in applying these criteria. On this point the Central Appeals Tribunal considered:
“In answering the question whether those criteria have been met in the present decision, taken pursuant to the AAW Reparation Act, the Central Appeals Tribunal recalls the history of that Act as set out in the preliminary questions to the ECJ which resulted in the Posthuma-Van Damme judgment [of 1 February 1996] (RSV 1996/169; the preliminary questions in RSV 1995/121):
'The AAW, in force since 1 October 1976, originally conferred on men and unmarried women, after one year of incapacity for work, entitlement to labour disability benefits, the amount of which did not depend either on any other income or on any loss of income by the beneficiary.
Entitlement to benefits under the AAW was extended to married women by the Act on the Introduction of Equal Treatment for Men and Women as to Entitlement to Social Security Benefits (Wet Invoering Gelijke Uitkeringsrechten voor Mannen en Vrouwen) of 20 December 1979. At the same time this Act made entitlement to benefits for all those insured, save for certain categories, subject to the condition that during the year preceding the occurrence of the labour incapacity the beneficiary had received from employment or in connection therewith a certain income which was initially set at no less than 3,423.81 Netherlands guilders (NLG) (hereinafter “the income requirement”). The income requirement applied to all persons whose incapacity for work had occurred after 1 January 1979.
By virtue of the transitional provisions contained in the above-cited Act of 20 December 1979, men and unmarried women whose incapacity for work had occurred before 1 January 1979 continued to be entitled to benefits without having to satisfy the income requirement. Married women whose incapacity had occurred before 1 October 1975 were not entitled to benefits even if they satisfied the income requirement. Married women whose incapacity had occurred between 1 October 1975 and 1 January 1979 were entitled to benefits only if they satisfied the income requirement.
By several judgments of 5 January 1988 the Central Appeals Tribunal held that those transitional provisions constituted discrimination on the ground of sex, contrary to Article 26 of the International Covenant on Civil and Political Rights (ICCPR) ... and that married women whose incapacity for work arose before 1 January 1979 were entitled, with effect from 1 January 1980, the date on which the Act of 20 December 1979 entered into force, to AAW benefits on the same conditions as men, that is to say without having to satisfy the income requirement, even if their incapacity had occurred before 1 October 1975.'
The legislature's choice in the AAW Reparation Act to make an income requirement apply to all persons claiming entitlement to AAW benefits from 1 July 1991, subsequent to the development outlined above, was mainly inspired by two considerations:
– under the regime of a long-term benefits arrangement, namely until the age of 65 in the case of continuous labour disability, there was a significant difference in the conditions for benefits (the income requirement) that was solely determined by the date of occurrence of the labour disability (prior to, on or after 1 January 1979) and which as such raised serious concerns regarding the principle of equal treatment of similar cases;
– the case-law had considerably enlarged the group of persons incapacitated for work who, without having to comply with the income requirement, had a continued entitlement to benefits after 1 January 1980, which could result in unacceptable budgetary consequences.
In reconstructing the AAW to take account of these considerations, the legal norms on equal treatment also had to be respected for other reasons, in which connection a major role was played by the European Union legislation concerning equal treatment of men and women and the prohibition of direct and indirect discrimination of men and women in the field of social security as further elaborated in the ECJ case-law.
The balance struck by the legislature has led to full equality in the conditions for benefits as regards previous income from work for the entire group of persons entitled to AAW benefits. Although, for part of that group, as in [the applicant's] case, this means that, after receiving AAW benefits for a period of up to a (maximum) of 14 years, their benefits are withdrawn, a situation which must undoubtedly be considered as a serious interference with the right protected by Article 1 of Protocol No. 1, and although the construction opted for, through the retroactive introduction of an eligibility condition, meets with objections as formulated in the Central Appeals Tribunal's decision RSV 1996/170, the Central Appeals Tribunal is of the opinion that, given the [above] development and the limited options subsequently available to the legislature, the chosen measure must also be upheld when examined in the light of Article 1 of Protocol No. 1.
In reaching this finding, the Central Appeals Tribunal further notes that, for the group concerned, a statutory transitional period of, ultimately, 26 months has been created, within which the entitlement to benefits continues in full. In this limited compensation it deserves to be mentioned that, as regards measures that are (also) inspired by compelling considerations of a financial nature, full or even considerable compensation cannot come into play without (to a large extent) annihilating the aim of those measures.
The Central Appeals Tribunal further takes into consideration that the additional condition was intended to affect only that group which, prior to the occurrence of the incapacity for work, did not depend for subsistence on AAW benefits.
The Central Appeals Tribunal finally considers it relevant that in the Netherlands system the General Welfare Act (Algemene Bijstandswet) functions as a social “safety net” which therefore is also applicable to those who were dependent for their subsistence on AAW benefits.
The Central Appeals Tribunal concludes that on this point also the appeal cannot succeed and that the impugned decision must be upheld. ...”
As the applicant's assets, i.e. her personal savings and the value of the mortgage-free home that she owned, exceeded the exemption limit under the General Welfare Act (Algemene Bijstandswet), she was not entitled to general welfare benefits during the period between 1 July 1991, when her AAW benefits were withdrawn, and 1 February 2000, when – having turned 65 – she became entitled to benefits under the General Old Age (Pensions) Act (Algemene Ouderdomswet).
The AAW, as in force between 1 October 1976 and 1 January 1998, provided for a general labour disability insurance scheme under which all persons residing in the Netherlands between the ages of 18 and 65 were guaranteed index-based benefits if, owing to labour incapacity having lasted for more than 52 consecutive weeks, they were unable to generate income from work.
Given that, since 1967, employees were already insured against labour incapacity under the Labour Disablement Insurance Act (Wet op de Arbeidsongeschiktheidsverzekering – “WAO”), the AAW was primarily of importance for those groups who, until then, had been ineligible for WAO benefits, namely the self-employed and those who were disabled from birth or who had become disabled before completing their education.
Entitlement to AAW benefits was not linked to payment of contributions: contrary to social security schemes based on employment (werknemersverzekering) such as, for instance, the WAO, the AAW was a general social security scheme (volksverzekering). Until 1 January 1990 the AAW scheme was funded by employers on the basis of a percentage of paid wages. From 1 January 1990 AAW contributions were collected through income tax.
The level of AAW benefits was linked to the level of incapacity and did not depend on a person's personal savings or other property. Entitlement to benefits started when the level of incapacity exceeded 25%. Full incapacity for work entailed entitlement to AAW benefits equal to 70% of a base figure (grondslag) related to the statutory minimum wage in force in the Netherlands. The base figure applicable to married men and single persons caring for a child under 18 was higher than the base figure applicable to single men and women.
Beneficiaries remained entitled to AAW benefits for as long as they were incapacitated for work, but not beyond the age of 65. Initially, married women were not eligible for AAW benefits on the basis of the then prevailing view that men were the breadwinners in the family.
On 19 December 1978 the Council of the European Communities issued Directive 79/7/EEC on the progressive implementation of equal treatment between men and women in the field of social security, granting member states a period of six years until 23 December 1984 within which to make any amendments to their legislation which might be necessary in order to bring it into conformity with the Directive.
This Directive led to the Act on the Introduction of Equal Treatment for Men and Women as to Entitlement to Social Security Benefits of 20 December 1979, which entered into force on 1 January 1980 and as a result of which married women also became entitled to AAW benefits in their own right. However, given the slowdown in economic growth in the Netherlands in the 1970s, and in order to avert major financial repercussions from granting an additional category of persons an entitlement to AAW benefits, an additional requirement for entitlement to benefits was simultaneously introduced. From 1 January 1980, anyone who had become incapacitated for work on or after 1 January 1979 (thereby taking into account the 52 consecutive weeks' waiting period) was required to have earned a fixed minimum amount of income from work in the year preceding the occurrence of the labour incapacity (“the income requirement”), thus rendering entitlement to AAW benefits dependent on the existence of a demonstrable link with actual income from work.
In accordance with the transitional provisions of the Act of 20 December 1979, married men and single persons who had become incapacitated before 1 January 1979 retained their entitlement to AAW benefits without having to comply with the newly introduced income requirement.
As regards married women a difference in treatment was made between those who had become incapacitated before 1 October 1975 (more than 52 weeks before the entry into force of the AAW) and those who had become incapacitated between 1 October 1975 and 1 January 1979. The first group was not entitled to AAW benefits even if the persons concerned complied with the income requirement, whereas members of the second group were entitled to AAW benefits only if they complied with the income requirement.
In six decisions given on 5 January 1988, the Central Appeals Tribunal held that these AAW rules in respect of married women constituted discriminatory treatment on the basis of sex, contrary to Article 26 of the ICCPR, as the requirement that a person's incapacity had to have occurred on or after 1 October 1975 in order to be entitled to AAW benefits applied to married women but not to married men. According to those decisions, married women whose incapacity for work had arisen before 1 January 1979 were entitled, from 1 January 1980, to AAW benefits under the same conditions as married men, i.e. without having to comply with the income requirement and on the basis of the same base figure as that applicable to married men. It was further held in those decisions that married women who had become incapacitated for work before 1 October 1975 and who were not entitled to AAW benefits, even if they did comply with the income requirement, were entitled, from 1 January 1980, to AAW benefits.
This finding led to the AAW Reparation Act of 3 May 1989, which entered into force on 4 May 1989 and which created the following situation:
married women who had become incapacitated for work before 1 January 1979 were entitled to AAW benefits. Married women who had applied for AAW benefits before 4 May 1989 did not have to comply with the income requirement in order to be entitled – with retroactive effect – to AAW benefits. Married women who had applied for AAW benefits on or after 4 May 1989 had to comply with the income requirement in order to be entitled to AAW benefits;
married women who had become incapacitated for work before 1 January 1979 and who had already been granted AAW benefits obtained, from 3 May 1989, AAW benefits on the basis of the same base figure applied to married men; and
all persons – men and women alike – who had become incapacitated for work before 1 January 1979 were to lose their entitlement to AAW benefits on 1 June 1990 if they did not comply with the income requirement.
By the Act of 4 July 1990 the date of withdrawal of AAW benefits, originally fixed at 1 June 1990 for those concerned, was postponed to 1 July 1991.
This resulted in numerous proceedings brought by persons whose AAW benefits had been withdrawn on the ground of non-compliance with the income requirement. In a judgment of 23 June 1992, the Central Appeals Tribunal held that, with regard to the income requirement, the fixed minimum income constituted indirect discrimination against women, in violation of Article 26 of the ICCPR and Article 4 (1) of Directive 79/7, and that the income requirement was to be regarded as being satisfied if, during the year prior to the occurrence of the incapacity for work, the beneficiary had earned “some income”.
In other sets of appeal proceedings concerning the withdrawal of AAW benefits for failure to comply with the income requirement, in which it was argued that the income requirement under the AAW was contrary to Directive 79/7 and was discriminatory, the Central Appeals Tribunal decided on 7 October 1994 to seek a preliminary ruling from the ECJ on this point.
On 1 February 1996 the ECJ handed down the requested preliminary ruling. This ruling, insofar as relevant, states:
“14. ...it should be recalled in the first place that the Court [has previously] ruled ... that Community law does not preclude the introduction of national legislation which, by making continuance of entitlement to benefits for incapacity for work subject to a condition applicable henceforth to men and women alike, has the effect of withdrawing from women in future rights which they derive from the direct effect of Article 4 (1) of Directive 79/7.
15. The Court also ruled that Article 4 (1) of Directive 79/7 precludes the application of national legislation which makes the grant of benefits for incapacity for work subject to the condition of having received some income during the year preceding the commencement of the incapacity, a condition which, although it does not distinguish on grounds of sex, affects far more women than men, even if the adoption of that national legislation is justified on budgetary grounds.
16. Next it should be observed that, when the Court examined whether Community law precluded the introduction of national legislation which, by making continuance of entitlement to benefits for incapacity for work subject to a condition applicable henceforth to men and women alike, has the effect of withdrawing from women in future rights which they derive from the direct effect of Article 4 (1) of Directive 79/7, it expressly reserved consideration of the question whether, as such, an income requirement of the kind at issue in the main proceedings complied with the principle of equal treatment between men and women. ...
18. In view of the foregoing, the questions referred for a preliminary ruling by the Central Appeals Tribunal should be construed as seeking to establish whether Article 4 (1) of Directive 79/7 precludes the application of national legislation which makes receipt of a benefit for incapacity for work subject to the requirement of having received a certain income from or in connection with work in the year preceding the commencement of incapacity where it is established that that requirement affects more women than men. ...
21. [As to the question whether persons who did not receive a certain income from or in connection with work in the year preceding the commencement of incapacity fall within the scope ratione personae of Directive 79/7, the ECJ concludes] that such persons do not necessarily fall outside the scope ratione personae of Directive 79/7. ...
23. In order to reply to the national court's question, as reformulated in paragraph 18, it should be recalled that Article 4 (1) of Directive 79/7 prohibits in social security matters all discrimination whatsoever on grounds of sex either directly, or indirectly by reference in particular to marital or family status, in particular as concerns the scope of the social security schemes and the conditions of access thereto.
24. As the Court has consistently held, Article 4 (1) of the Directive precludes the application of a national measure which, although formulated in neutral terms, works to the disadvantage of far more women than men, unless that measure is based on objective factors unrelated to any discrimination on grounds of sex. That is the case where the measures chosen reflect a legitimate social policy aim of the Member State whose legislation is at issue, are appropriate to achieve that aim and are necessary in order to do so ....
25. ...the Netherlands Government essentially argue that, by introducing the income requirement in the AAW, the Law of 20 December 1979 caused the Netherlands scheme relating to incapacity for work to shift from being pure national insurance to insurance against loss of income guaranteeing a minimum income to insured persons and that, by providing that the income requirement was henceforward to apply to all insured persons, whether male or female, married or unmarried, who became unfit for work before or after 1 January 1979, the Law of 3 May 1989 accentuated the nature of that scheme as one providing insurance against loss of income. They consider that, in so doing, the Netherlands legislature pursued a legitimate social policy aim, inherent in numerous social security schemes, of restricting eligibility for a given benefit to persons who have lost income following the materialisation of the risk which the benefit is intended to cover.
26. As the Court has held [in its judgment of 24 February 1994] in De Weerd, née Roks, and Others [Case C-343/92] at paragraph 28, Directive 79/7 leaves intact the powers reserved by Articles 117 and 118 of the EC Treaty to the Member States to define their social policy within the framework of close co-operation organised by the Commission, and consequently the nature and extent of measures of social protection, including those relating to social security, and the way in which they are implemented. In exercising that competence, the Member States have a broad margin of discretion....
27. It must be held that guaranteeing the benefit of a minimum income to persons who were in receipt of income from or in connection with work which they had to abandon owing to incapacity for work satisfies a legitimate aim of social policy and that to make the benefit of that minimum income subject to the requirement that the person concerned must have been in receipt of such an income in the year prior to the commencement of incapacity for work constitutes a measure appropriate to achieve that aim which the national legislature, in the exercise of its competence, was reasonably entitled to consider necessary in order to do so.
28. The fact that that scheme replaced a scheme of pure national insurance and that the number of persons eligible to benefit from it was further reduced to those who had actually lost income from or in connection with work at the time when the risk materialised cannot affect that finding.
29. It appears from the case-law of the Court (De Weerd, née Roks, and Others, at paragraph 29, confirmed in Case C-137/94 Richardson [1995] ECR I-0000, paragraph 24) that Community law does not prevent Member States from taking measures which have the effect of withdrawing social security benefits from certain categories of persons, provided that those measures are compatible with the principle of equal treatment between men and women as defined in Article 4 (1) of Directive 79/7. Subject to that proviso, Member States are also free to lay down, as part of their social policy, new rules which have the effect of reducing the number of persons eligible for a social security benefit.
30. The reply to the national court's questions must therefore be that Article 4 (1) of Directive 79/7 does not preclude the application of national legislation which makes receipt of a benefit for incapacity for work subject to the requirement of having received a certain income from or in connection with work in the year preceding the commencement of incapacity, even if it is established that that requirement affects more women than men.”
In other domestic proceedings the income requirement was challenged on grounds, inter alia, of its incompatibility with the prohibition of discrimination set out in, for instance, Article 14 of the Convention.
In a judgment given on 11 April 1997, the Central Appeals Tribunal rejected this argument. This judgment, insofar as relevant, reads:
“It has been argued that the withdrawal of the AAW benefits on grounds of [non-compliance with the income requirement] is in violation of Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1. On the assumption that AAW benefits, such as in issue in the present case, can be regarded as a “possession” within the meaning of the latter provision, which assumption finds support in the [Gaygusuz v. Austria] judgment of the European Court of Human Rights of 16 September 1996, it must be examined whether Article IV of the Act of 3 May 1989 entails a violation of Article 14 of the Convention ...
The Central Appeals Tribunal is of the opinion that, insofar as Article IV links the (continuation of) entitlement to [AAW benefits] to the condition that prior to the occurrence of labour incapacity (some) income from or in connection with work must have been obtained, this is without any doubt an “objective and reasonable justification” in the sense of the Court's case-law which, in accordance with that same case-law, entails that a “legitimate aim” must be pursued and that there must be a “reasonable relationship of proportionality between the means employed and the aim sought to be realised” (see paragraph 42 of the Gaygusuz judgment).
In this connection the Central Appeals Tribunal points out that Article IV of the Act of 3 May 1989 has already passed a similar test on the basis of certainly no less strict criteria, as apparent from the above-cited ECJ judgment of 1 February 1996 (RSV 1996/169).”
The AAW was repealed on 1 January 1998 and replaced, as regards persons not employed by others, by the Self-employed Persons Disablement Benefits Act (Wet Arbeidsongeschiktheidsverzekering Zelfstandigen) and the Disablement Assistance Act for Handicapped Young Persons (Wet Arbeidsongeschiktheidsverzekering voor jonggehandicapten). Employees continued to be insured for incapacity for work under the WAO.
Under the General Welfare Act, as in force at the material time, all persons between the ages of 18 and 65 and lawfully residing in the Netherlands were eligible for benefits under this Act if they had no other means of subsistence. General welfare beneficiaries who were younger than 57½ years were obliged to make demonstrable efforts to find work and had to be registered at an employment office (arbeidsbureau). Beneficiaries who were older than 57½ and mothers with children younger than 5 years were exempted from this obligation.
There were national norms under the General Welfare Act for different categories of beneficiaries. Married and cohabiting couples were entitled to welfare benefits equal to 100% of the statutory fixed minimum wage, single parents to welfare benefits equal to 70% of the minimum wage, and single persons to benefits equal to 50% of the minimum wage. For the latter two categories, supplementary welfare benefits of up to 20% could be granted under certain conditions, such as when the beneficiary was living alone. Special rules applied to welfare beneficiaries between the ages of 18 and 21.
Unlike the AAW, the General Welfare Act was not designed to insure against loss of income (opportunities) resulting from a certain risk materialising (e.g. incapacity for work) but was to serve as a last resort safety net, in that entitlement to welfare benefits only arose where there were no other possibilities for obtaining sufficient income for meeting basic needs.
In order to be eligible for welfare benefits, personal savings were not to exceed an annually defined limit. On 1 January 1991 this limit was set at 8,350 Netherlands guilders (NLG) for a single person and at NLG 16,700 for a family. This limit was higher for homeowners, in that capital tied up in their home was taken into account. On 1 January 1991, the limit for a single home-owner was set at a maximum of NLG 68,350, and at a maximum of NLG 76,700 for a home-owning family.
On 1 January 2004, the General Welfare Act was replaced by the Work and Social Assistance Act (Wet Werk en Bijstand).


ITEMID: 001-70907
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: WEIGT v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Antoni Weigt, is a Polish national who was born in 1942 and lives in Prudnik. He was represented before the Court by Mr T. Weigt, a lawyer practising in Bolesławiec.
At the material time the applicant was an editor-in-chief of a local weekly “Tygodnik Prudnicki”.
Apparently, on an unspecified date a municipal authority allocated certain municipal apartment to one of the local councillors, which caused widespread indignation in the local community.
On 25 June 1995 the weekly published an article in which the applicant reported on a conflict between J.C., one of the local councillors, and the director of the local social assistance centre. The article contained a statement that “J.C. had instigated four or five supervision procedures in respect of the centre” and that his activities concerning the centre had been aimed at “delaying a public explanation of the conflict [between J.C. and the director of the centre] to the constituency”.
On 27 August 1995 the weekly published an article entitled “Turning Things On Their Head” (“Odwracanie kota ogonem”) in which certain disagreements between J.C. and the director of the centre as to the policy which should be followed by that centre were described.
On 17 September 1995 the weekly published another article, reporting on a session of the Prudnik Municipal Council, during which a motion to remove J.C. from his post of a member of the municipal executive board had been discussed. The article quoted certain arguments advanced by the councillors during the debate, referring to the lawfulness of the procedure and to various local controversies as they found their expression during the debates. It also summarised J. C.’s statements in the following way:
“Consistent” J.C. once again presented his arguments. (...) He reiterated his objections concerning the Social Assistance Centre, threw in, for good measure, “a municipal apartment for one councillor”, [an issue of] premises for the “Tygodnik Prudnicki” – which he branded a “gang”. Many supervision procedures found his complaints about the Centre groundless, and [the question of the apartment and the premises] he had invented himself! Nothing like that had ever occurred. ”
Another article on local politics, entitled “What’s up”, was published on 24 September 1995. In this article its author reported on the last meeting of the local municipal council and also purported to explain to the reader the subtleties of the local politics and personal conflicts behind them.
Following these publications J.C. lodged a private bill of indictment with the Nysa District Court, charging the applicant with defamation in that he had published four articles blackening the plaintiff’s reputation.
In a judgment of 16 October 1997 that court found that the applicant had committed a criminal offence of defamation punishable under Article 178 § 2 of the Criminal Code of 1969 and conditionally discontinued the proceedings, fixing a probation period of one year. It also obliged the applicant to apologise to the plaintiff in writing.
The operative part of the judgment read as follows:
“Having regard to the fact that the publication in September 1995 in issues Nos. 38 and 39 of Tygodnik Prudnicki, a weekly of which [A.W.] was an editor, of articles “A. against J.C.” and “What’s up” containing untrue information that J.C., who in the present case acted as a private prosecutor, had invented the issue of the [municipal] apartment and that he had ‘himself acknowledged that he had overstepped the limits of his competence by conducting many investigations on behalf of the Municipal Board, but without a relevant authorisation’ amounted to making public such allegations about the plaintiff’s conduct as could expose him to a risk of losing the public trust necessary for him to carry out his public function, amounted to a criminal offence provided for by Article 178 § 1 of the Criminal Code
(...)
discontinues the criminal proceedings against the accused and sets the period of probation for one year.”
The court observed that the applicant had published in the weekly a number of articles on local politics. They were aggressive towards J. C. and had shown him in a bad light. It was suggested that he had a tendency to fantasise and to overstep the limits of his competence. It was also implied that he was vexatious and unreliable and had abused his powers. The texts and the charges contained therein could therefore expose J.C. to the risk of lowering him in public opinion.
The court referred to the sub-titles of the text published on 17 September 1995, which had read as follows: “Mr C. forgot!”, “Personal ambitions are at play here”, “Detrimental to the interests of the municipality”, “He invented it himself!”. The court observed that these sub-titles well conveyed the essence of the author’s hostility towards J.C.
The court noted that the article had made reference to some municipal apartment. It further noted that it was aware of the fact that a municipal apartment had in the past been assigned to one of the local politicians, a fact which created an uproar in Prudnik. The applicant had undoubtedly taken a certain shortcut when saying in the article of 17 September:
“[the question of the apartment and premises] he had invented himself! Nothing like that had ever occurred. ”
In this connection, the court referred to numerous pieces of evidence referring to the public debate concerning that apartment and concluded that in the light of this evidence the suggestion that J.C. had invented the whole story of the apartment was clearly erroneous.
The court further observed that subsequently, on 24 September 1995, the weekly had published an article entitled “What’s up”, purported to explain to the reader the subtleties of the local politics. The article had contained the following statement on J.C:
“He had himself admitted that he had overstepped his powers, having conducted many investigations on behalf of the municipal authorities, but without any relevant authorisation”.
The court observed that J.C. had never admitted that he had been conducting any such investigations which could be established, for example, from the minutes of the session of the municipal council held on 7 September 1995. Hence, the reference to both the alleged non-authorised investigations and to the admission that he had allegedly overstepped his powers was clearly untrue. Having regard thereto, the court considered that the applicant had failed to observe his fundamental obligation as a journalist, in particular in that he had failed to check the veracity of information he had published. In the proceedings before the court he was unable to refer to any source on which he had based his pertinent statements. It was open to him to consult the detailed records of the sessions of the local council, which he had failed to do.
In the absence of convincing evidence to support the applicant’s allegations and innuendos, the court concluded that when publishing the first two articles he had published untrue information, which amounted to a criminal offence of defamation punishable under Article 178 of the Criminal Code.
Referring to the conditional discontinuation of criminal proceedings, the court observed that the offence was not dangerous and that the applicant did not have any criminal record.
The applicant appealed, submitting, inter alia, that the judgment amounted to a breach of his freedom of expression.
On 30 January 1998 the Opole Regional Court dismissed his appeal, considering that the assessment of the evidence by the lower court was not arbitrary. It observed that the applicant had failed to show that he had any factual basis for his allegations when publishing the articles. No evidence had been submitted to the court to show that J.C. had indeed admitted that he had overstepped the limits of his competence, as the applicant implied in the first article. Nor was it true that J.C. had invented the issue of the municipal apartment having been assigned to one local politician. The published statements being untrue, they amounted to defamation.
The court also noted that under the case-law of the European Court of Human Rights freedom of expression covered the transmission of information but not of misinformation; conveying facts, not mendacious innuendos. Lastly, the court observed that the appeal referred to the applicant’s notes prepared for the purpose of writing the articles, but that the case was limited to the examination of the texts as they were eventually published, i.e to the untrue and laconic phrases used in the articles.
On 23 November 2000 the Supreme Court, in a decision to which under applicable provisions of law no written grounds were prepared, dismissed the cassation appeal as manifestly ill-founded.
Under Article 178 § 2 of the Criminal Code of 1969, applicable at the material time, whoever disseminated untrue statements about another person’s acts or character with an intention of lowering him or her in public esteem or of making him or her lose the public trust necessary for that person to carry out his or her public functions, committed a criminal offence punishable by a prison sentence of up to three years.
Pursuant to Article 27 of the Code of Criminal Procedure of 1969, criminal proceedings could be conditionally discontinued, if the seriousness of the offence, punishable by a prison sentence of less than three years, was not significant, if the circumstances in which it had been committed had been established, if the perpetrator did not have a criminal record and if his personal circumstances and qualities justified a conclusion that he would respect the legal order during the probation period.
Under Article 28, the court, when deciding to discontinue the proceedings for the probation period, could impose certain obligations on the accused: to pay appropriate compensation to the victim of the offence, to apologise to him/her, or to carry out certain work in the public interest.
Under Article 29 of the Code, the court could fix a probation period of between one and two years, running from the date on which the judgment became final.
Criminal proceedings could be resumed if during the probation period the offender disregarded the obligations imposed by the court, acted in flagrant breach of public order, or, in particular, committed a new criminal offence.


ITEMID: 001-79225
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF AON CONSEIL ET COURTAGE S.A. AND CHRISTIAN DE CLARENS S.A. v. FRANCE
IMPORTANCE: 3
CONCLUSION: Violation of P1-1;Pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings
JUDGES: Christos Rozakis
TEXT: 5. The applicants, Aon Conseil et Courtage S.A. and Christian de Clarens S.A., are two French companies based in Paris. Aon Conseil et Courtage succeeded to the rights of another company SGAP Expansion, which had in turn acquired them through two other companies, SGAP S.A. and OGIA S.A.
6. Christian de Clarens, SGAP and OGIA were engaged in insurance broking, a commercial activity which, by virtue of Article 256 of the General Tax Code as worded until 31 December 1978, attracted value-added tax (VAT). They paid 967,033.21 French francs (FRF), FRF 2,061,836.46 and FRF 93,216.98 respectively in VAT on their 1978 transactions.
7. However, Article 13-B-a of the Sixth Directive of the Council of the European Communities dated 17 May 1977 provided an exemption for “insurance and reinsurance transactions, including related services performed by insurance brokers and insurance agents”. The directive was due to come into force on 1 January 1978.
8. On 30 June 1978 the Ninth Directive of the Council of the European Communities dated 26 June 1978 was notified to the French State. It granted France an extension of time – until 1 January 1979 – in which to implement the provisions of Article 13-B-a of the Sixth Directive of 1977. Since such directives have no retroactive effect, the Sixth Directive should nevertheless have been applied from 1 January to 30 June 1978.
9. On 2 and 5 October 1978 and 21 and 26 June 1979 Christian de Clarens lodged four applications with the Paris Administrative Court seeking, on the basis of the Sixth Directive of 17 May 1977, a refund of the VAT it had paid.
10. On 7 December 1979 SGAP transferred all the assets of its insurance broking arm to a new company, SGAP Exploitation. SGAP nevertheless continued to be registered under the same number at the Trade and Companies Registry while changing its name to SOGEDEP the same day and to SGAP Expansion on 6 January 1988.
11. In a judgment of 8 January 1981, the Paris Administrative Court dismissed the four applications lodged by Christian de Clarens.
12. An administrative circular was issued on 2 January 1986 which stipulated:
“... no further action shall be taken to collect sums remaining due at the date of publication of this circular from insurance brokers who have failed to charge value-added tax on their transactions between 1 January and 30 June 1978 and have received supplementary tax assessments as a result.”
13. On 1 July 1992 the Paris Administrative Court of Appeal held in the S.A. Dangeville case that Article 256 of the General Tax Code, as worded in the relevant period, was incompatible with the provisions of the Sixth Directive.
14. Considering that the French State had acted unlawfully by failing to incorporate into domestic law the provisions of the Sixth Directive within the time allowed, SGAP, OGIA and Christian de Clarens wrote to the authorities on 20 December 1993 to claim compensation for their losses.
15. In decisions of 8 February 1994 in the case of SGAP and OGIA, and 4 March 1994 in the case of Christian de Clarens, the Minister for the Budget rejected their requests on the grounds that they were inadmissible by virtue of Article L 190 of the Code of Tax Procedure and that the amount of the loss had to be reduced by the amount of employment tax owed by companies exempted from VAT.
16. On 9 April 1994 SGAP, OGIA and Christian de Clarens brought proceedings in the Paris Administrative Court against the French State for failing to incorporate the Sixth Directive of 17 May 1977 into domestic law thereby causing them a loss equal to the amount of overpaid VAT for 1978, which they claimed should be refunded.
17. In a judgment of 15 March 1995, the Paris Administrative Court joined the applicant companies' applications with those of other claimants, including the Diot and Gras Savoye companies, and declared them inadmissible by virtue of Article L 190, paragraph 3 of the Code of Tax Procedure, on the grounds that:
“The provisions are general in scope and not intended as a bar to the application of Community treaties, regulations, directives or decisions or to the execution of judgments of the Court of Justice of the Communities.
Their sole purpose is to determine in accordance with the legitimate aim of legal certainty the period in which claims for release from liability to tax, for the recovery of sums paid but not due or for compensation may be made by taxpayers who have not taken any action themselves but have been shown, in a court decision in proceedings to which they were not parties, to have been wrongly subjected to tax. The limitation period laid down in the provisions does not prohibit reasonably diligent claimants from asserting the rights to which they may be entitled by virtue of Community norms.
It follows from the foregoing the Article L 190 of the Code of Tax Procedure is not manifestly incompatible with a Community norm of international-treaty status. There is consequently no reason why it should not be applied.
The provisions of the third paragraph of that Article expressly concern both actions for recovery of sums paid but not due and actions for compensation in respect of loss. There is no reason to consider that the legislature intended to exclude from the scope of these provisions certain forms of action on account of the nature of the alleged losses or of the tax liability concerned.
If it is not overruled on this point, the judgment delivered on 1 July 1992 by the Paris Administrative Court of Appeal on the application of the Jacques Dangeville company will be the first judicial decision to have revealed an incompatibility between Article 256-1 of the General Tax Code, as worded during the relevant period, and the Sixth Directive of the Council of the European Communities. Pursuant to the aforementioned provisions of Article L 190 of the Code of Tax Procedure it was consequently from the date of that decision that it became possible to determine, in respect of all taxpayers, the period which Article L 190 allowed for actions to be brought on the basis of that incompatibility for repayment of sums paid or not deducted, or for compensation for loss.
It follows from the foregoing that the claims of the applicant companies relating to taxes paid during the first semester of 1978 are inadmissible and must consequently be rejected.”
18. On 16 June 1995 SGAP Expansion took over OGIA following a merger. It is also took over SGAP Exploitation, the same company to which it had transferred its entire business on 7 December 1979.
19. On 18 September 1995 SGAP Expansion and Christian de Clarens appealed to the Paris Administrative Court of Appeal against the judgment of the Paris Administrative Court.
20. On 5 December 1995 they lodged written submissions in which, in addition to repeating their claims for reimbursement, they again argued that Article L 190 of the Code of Tax Procedure did not provide a valid defence to their claims, which were for compensation for losses resulting from the State's failure to comply with its obligations under Community law.
21. Meanwhile in the aforementioned Dangeville case, the Conseil d'Etat, hearing an appeal against the judgment delivered by the Paris Administrative Court of Appeal on 1 July 1992, gave judgment on 30 October 1996, essentially in the following terms:
“The documents in the file submitted to the Paris Administrative Court of Appeal show that by a decision of 19 March 1986 the Conseil d'Etat, acting in its judicial capacity, dismissed a claim by S.A. Jacques Dangeville seeking reimbursement of value-added tax it had paid for the period from 1 January to 31 December 1978, inter alia, on the ground that its liability to that tax had arisen from the application of statutory provisions that were incompatible with the objectives of the Sixth Directive of the Council of the European Communities of 17 May 1977. The claim by S.A. Jacques Dangeville which the Administrative Court of Appeal examined in the impugned judgment was for payment of 'compensation' in an amount equal to the amount of value-added tax that had thus been paid, by way of reparation for the 'damage' which that tax liability had caused the company to sustain, on the ground that that damage was attributable to the French State's delay in transposing the objectives of the Directive into domestic law. It follows that, as submitted by the Minister of the Budget, the Paris Administrative Court of Appeal erred in law in holding that the fact that the company '[had] first referred the issue of taxation to the tax court' did not render inadmissible a claim for reparation in which the only alleged damage was that resulting from the payment of the tax. The Minister of the Budget's application to have the impugned judgment overturned is accordingly founded to the extent that the Administrative Court of Appeal upheld in part the claims made by S.A. Jacques Dangeville in its submissions. ...”
22. On the same day the Conseil d'Etat delivered judgment on an appeal lodged on 23 August 1982 by S.A. Revert et Badelon against the Paris Administrative Court's judgment of 10 June 1982. The Conseil d'Etat did not follow the line it had taken in its judgment of 19 March 1986 in the Dangeville case, but instead declared S.A. Revert et Badelon's appeal on points of law admissible, holding that the company was entitled to rely on the provisions of the Sixth Directive and should be granted a release from the contested tax liability – for which there was no statutory basis as the statutory provisions conflicted with the objectives of the Directive – for the sums erroneously paid for the period from 1 January to 30 June 1978.
23. In a judgment of 28 January 1997, the Paris Administrative Court of Appeal dismissed the applicant companies' appeals on the grounds that:
“The claims lodged by the companies with the Administrative Court were for an award of damages ... as reparation, which the Minister for the Budget had refused to make, for the loss ... caused by their wrongly being required to pay value added tax for the first semester of 1978 in the exact amounts mentioned above. It is, however, common ground that as at 9 April 1994, when the claim was registered with the court registry, [the claimants] had not obtained a release from the said liability to value added tax through a request to the authorities to that end and, in the event of [their] request being rejected, an appeal to the tax court in accordance with the specific procedure described in Articles L 190 et seq. of the Code of Tax Procedure. In these circumstances, the claims were, as the Minister has argued, inadmissible. It follows that [the companies] have no basis on which to complain about the Paris Administrative Court's impugned decision to dismiss their claims as unfounded.”
24. By a notice of appeal dated 17 March 1997 and written submissions dated 17 July 1997, SGAP Expansion and Christian de Clarens appealed on points of law.
25. On 30 June 2000 SGAP Expansion was the subject of a takeover by a company called Aon France, which on the same day transferred its brokerage and insurance business to a company called Le Blanc de Nicolay Réassurance. The latter subsequently changed its name to Aon Conseil et Courtage.
26. In a judgment of 10 November 2000, the Conseil d'Etat dismissed the appeals in the following terms:
“In their submissions, [the companies] sought compensation from the State in an amount equal to the value added tax they had paid in respect of the first semester of 1978. These submissions, which in practice amounted to a claim for repayment of the value added tax paid, were inadmissible as they could only be made subject to the conditions and time-limits set out in Articles L 190 et seq. of the Code of Tax Procedure. This conclusion, which answers a point raised before the courts below and does not involve any assessment of the factual circumstances, shall replace the legally flawed finding that served as the basis for the operative provision in the impugned judgment. The appeal ... must be dismissed.”
27. The provisions of Article L 190 of the Code of Tax Procedure, applicable at the relevant time, read as follows:
“Claims relating to taxes, contributions, duties, charges, dues, indemnities and penalties of any kind, assessed or recovered by revenue officials, fall within the jurisdiction of the courts where they seek compensation for errors committed in the assessment or calculation of tax, or an entitlement due under a statutory provision or regulation.
All actions seeking a release from or reduction in tax, or to a right to make a deduction, on the ground that the norm that has been applied is incompatible with a higher-ranking norm, shall be heard and determined in accordance with the rules laid down in the present chapter.
Where such incompatibility has been established by a judicial decision, an action for the restitution of the sums paid or not deducted or for compensation for loss may only relate to the period following 1 January of the fourth year preceding that of the judgment establishing such incompatibility.”
28. In its Roquette Frères S.A. judgment of 28 November 2000 (C-88/99), the Court of Justice of the European Communities (CJEC) gave the following answer to a question referred for a preliminary ruling on the provisions of Article L 190 of the Code of Tax Procedure:
“... Community law does not preclude legislation of a Member State laying down that, in tax matters, an action for recovery of a sum paid but not due based on a finding by a national or Community court that a national rule is not compatible with a superior rule of national law or with a Community rule of law may only relate to the period following 1 January of the fourth year preceding that of the judgment establishing such incompatibility.”


ITEMID: 001-5390
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: KEPKA v. POLAND
IMPORTANCE: 1
CONCLUSION: Inadmissible
JUDGES: Georg Ress
TEXT: The applicant is a Polish national, born in 1935 and living in Warsaw, Poland
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 1 April 1988 the applicant, who at about the same time took his doctor’s degree in physics, joined the National Fire Service (Państwowa Straż Pożarna) and, when he obtained a post of senior academic teacher at the National Fire Academy (Szkoła Główna Slużby Pożarniczej), attained the rank of lieutenant. During the entire period of his service the applicant worked as a teacher. He gave lectures on physics and carried out scientific research. Part of that research concerned issues considered important for national defence. He also published articles and scientific dissertations.
In 1988 the applicant completed two training courses: the first in fire prevention, the second designed for fire officers.
On an unspecified later date he achieved the rank of captain.
On 31 May 1994 the applicant underwent a routine medical examination. The relevant report stated that he was permanently unfit to take part in fighting fires and emergency actions but fit to serve if he continued to work as a lecturer.
On 23 January 1995 the Superintendent of the National Fire Academy opened disciplinary proceedings against the applicant on charges of insubordination (in connection with his failure to comply with a superior’s order), wilful disregard of instructions (in that he had allowed third persons to have access to research carried out in respect of the matter of crucial importance for national defence) and two other breaches of discipline.
On 10 March 1995 the Superintendent issued an order disciplinarily discharging the applicant from the fire service “with effect from 31 March 1995”. The applicant appealed to the Commandant of the National Fire Service (Komendant Główny Państwowej Straży Pożarnej).
On 29 March 1995 the Commandant upheld the order. The applicant appealed to the Minister of the Interior (Minister Spraw Wewnętrznych) on 6 April 1995. He requested the Minister, inter alia, to “quash immediately the relevant orders” and to “promote him and award a special prize as reward for his achievements”.
On 30 May 1995 the Minister upheld the decision to discharge the applicant from the fire service but amended the date on which it was to take effect, ordering that the material date be 31 May 1995.
Subsequently, on an unspecified date, the applicant appealed to the Supreme Administrative Court (Naczelny Sąd Administracyjny). He contested the decision of the Commandant of the National Fire Service of 29 March 1995 and the decision of the Minister of the Interior of 30 May 1995, alleging that they were contrary to the law.
The Supreme Administrative Court gave judgment on 13 September 1995. It dismissed the appeal for two principal reasons: firstly, because it had no jurisdiction to deal with disciplinary matters and, secondly, as it had found no legal flaw in the impugned decisions.
In the meantime, on an unspecified date, the applicant had sued the Superintendent of the National Fire Academy in the Warsaw District Court of Labour (Sąd Rejonowy - Wydział Pracy), seeking reinstatement to the fire service. The court refused to deal with the merits of the claim because a discharge from the fire service did not fall within the labour courts’ jurisdiction, such matters being resolved exclusively in administrative proceedings.
The organisation of the National Fire Service, terms and conditions of service therein and detailed duties of firemen are laid down in the Law of 24 August 1991 on the National Fire Service (Ustawa o Państwowej Straży Pożarnej) (as amended), hereafter referred to as “the 1991 Act”.
The National Fire Service in Poland is part of the national public service. From the organisational point of view, it is, like the police, incorporated into the Ministry of the Interior. The Commandant of the National Fire Service is a public authority called a “central organ of governmental administration” (centralny organ administracji rządowej) and, like the Commandant of the Police, is subordinate to the Minister of the Interior (section 9 §1 of the 1991 Act). The Minister of the Interior not only supervises the National Fire Service but also has the power to issue ordinances or other regulations setting out the detailed organisation of fire-fighting brigades, units and their equipment (section 8 § 4 of the 1991 Act).
Within the general structure of the State, the National Fire Service, like other emergency services, belongs to the forces for maintenance of public safety.
Section 1 of the 1991 Act lays down the general tasks and duties of the National Fire Service. This provision reads:
“1. There shall be established the National Fire Service – a professional, uniformed and specially equipped formation, which shall deal with fire-fighting, disasters and other local emergencies.
2. The National Fire Service shall carry out the following principal tasks:
1) identifying fire hazards and other local emergencies;
2) organising and carrying out rescue actions during fires, disasters or operations to combat local emergencies;
3) carrying out supporting specialised rescue actions during disasters or operations by other emergency services to combat local emergencies;
4) training staff for the National Fire Service and other organs of fire protection and the national system for the protection of the nation;
5) supervising compliance with fire-safety regulations;
6) carrying out research into fire prevention and protection of the nation.
3. Service in the National Fire Service shall be performed by fire service officials, hereafter named “firemen”.”
Section 2 § 1 states:
“The National Fire Service shall organise the national system of fighting fires and combating emergencies, aimed at protecting life, health, property and the environment, in particular through:
1) fighting fires and other disasters;
2) technical rescue operations;
3) chemical rescue operations;
4) ecological rescue operations;
5) medical rescue operations.”
Section 8 § 1 sets out the following structure of the National Fire Service:
“There shall be the following organisational units of the National Fire Service:
1) the Chief Command;
2) the Regional Command;
3) the County/Town Command;
4) the National Fire Academy and other schools or training centres;
5) the research and development units;
6) the Central Museum of the Fire Service.”
Section 17 § 1 of the Act, referring to the organisation of the National Fire Academy, stipulates:
“The organisation and scope of the activities of the National Fire Academy, as well as the rules governing the appointment or dismissal of its Superintendent and his deputies, shall be regulated by the provisions concerning higher military academies.”