ITEMID: 001-57682
LANGUAGEISOCODE: ENG
RESPONDENT: MLT
BRANCH: CHAMBER
DATE: 1991
DOCNAME: CASE OF DEMICOLI v. MALTA
IMPORTANCE: 2
CONCLUSION: Preliminary objection rejected (six month period);Violation of Art. 6-1;Not necessary to examine Art. 6-2;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
JUDGES: N. Valticos;R. Pekkanen
TEXT: 9. The applicant is the editor of the political satirical periodical "MHUX fl-Interesstal-Poplu" (NOT in the people’s interest).
10. On 3 January 1986 an article entitled "Mix-Xena tax-Xandir" (From the Broadcasting Scene) appeared in the applicant’s periodical commenting on a particular parliamentary debate in the Maltese House of Representatives, which had been broadcast live on television. The article included the following passages:
"SEND IN THE CLOWN
Some felt offended that I had lately written that, during the budget debates, I went berserk and started throwing tomatoes at the television set. And this happened when certain Members of Parliament had not as yet spoken in the debates. I will let your fertile imagination take its course to imagine what I did when two of them in particular were speaking.
THE PARLIAMENTARY CLOWN
I do not know if I shall be in breach of the Sedition Laws if I describe a minister as a clown. But I cannot fail to comment on Debono Grech’s behaviour in Parliament. It seems that Debono Grech deliberately tried to make us laugh. If this is so, Debono Grech is ridiculing what is supposed to be the highest institution of the land.
Let us see what Debono Grech was up to. His first sentence was meant to raise some laughs as he maintained that Lawrence Gatt, a Nationalist Member of Parliament, badly needed a pair of spectacles. This was rather a flat joke. Then he started calling names Bonello Dupuis [a Nationalist Member of Parliament] and described the latter as a man who lacked principles. Then he tried to make us laugh once again when he referred to the killing of pigs. Anyway, he tried to play the clown once, twice and even three times. And some of his jokes were rather vulgar.
I felt extremely angry that the man who is representing the people, and that includes yours truly, on agricultural matters, was using this serious and important debate to play the clown. Well, I thought, if Debono Grech has the right to speak the way he likes on the television screen, in my home, then I am also entitled to speak my mind. And I started booing him with all my might, and had I had enough tomatoes, I would have used them for other purposes.
You may ask me what I did when ‘il-Profs’ Bartolo of Cospicua took the microphone. First and foremost, this man is not as yet aware that Mintoff has resigned and Bartolo still echoes him to this very day. Secondly, you stand no chance of finding anything worthwhile after analysing Bartolo’s speech. At least, you may find something worthwhile in Debono Grech’s speech, but you discover absolutely nothing in Bartolo’s. Let me tell you what I did when this professor stood up to speak.
I booed this last one so heartily that the neighbours thought that I had had an epileptic fit. To crown it all, Mrs Grech, that nosy parker, entered my home unannounced and without permission and she found me on the floor in an ecstasy of booing. She thought I had become a lunatic. Really, the scene in front of the television was scary. Bartolo was gesticulating and talking rubbish on the Magruvision Television set while I lay sprawled on the floor gesticulating like a madman. And I did all this so that I may have enough material for ‘MHUX’. To persuade Mrs Grech that nothing was really wrong with me I had to allow her to take my pulse rate, examine my tongue and take my temperature."
11. On 13 January 1986 Mr Debono Grech and Mr Bartolo, two of the Members of Parliament referred to, brought the article to the attention of the House of Representatives as an alleged breach of privilege. On 10 February, before the applicant had been heard, the Speaker announced that he had examined the matter and found a prima facie case of breach of privilege. The House, on a proposal by Mr Debono Grech, proceeded on the same day to pass a resolution which stated that the House considered the article in question as a breach of its privileges according to section 11(1)(k) of the House of Representatives (Privileges and Powers) Ordinance (Chapter 179 of the Revised Edition of the Laws of Malta; see paragraph 20 below), hereinafter referred to as "the Ordinance".
12. On 4 March 1986 the House of Representatives considered a motion, proposed by Dr Joseph Cassar and seconded by Mr Debono Grech, to direct the applicant to be summoned by notice under section 13(2) of the Ordinance to answer a charge of defamatory libel under section 11(1)(k) of the Ordinance. The terms of the motion were:
"That the House after having by its own resolution decided in the sitting of 10 February 1986 that the article bearing the title ‘Mix-Xena tax-Xandir’ which appeared at page 4 of the ‘MHUX fl-Interesstal-Poplu’ of 3 January 1986 be considered a breach of privilege according to section 11(1)(k) of the House of Representatives (Privileges and Powers) Ordinance;
The House orders Carmel Demicoli of Flat 1, Ferrini Court, University Street, Msida, as editor of the journal ‘MHUX fl-Interesstal-Poplu’, to appear before it in the sitting of 17 March 1986 at 6.30 pm to state why he should not be found guilty of breach of privilege according to section 11(1)(k) of the House of Representatives (Privileges and Powers) Ordinance; and
The House also orders the subpoena of every witness that the Clerk of the House will be asked to summon."
The then Leader of the Opposition, Dr Fenech Adami, drew attention to the wording of the resolution of 10 February 1986 which he considered out of order since it did not make it clear that there was only a prima facie case of breach of privilege. For his part, Dr Cassar expressed the opinion that the proposed motion did not state that the applicant was guilty:
"Here we are not saying that he is guilty. We are saying: Come here so that on the 17th of March you will say why you are not guilty. And if ever you were to convince us that you are not guilty we will say that you are not guilty; if you will not convince us we will say you are guilty."
After the debate the motion was adopted as proposed by Dr Cassar.
13. On 13 March 1986 Mr Demicoli brought an application before the Civil Court of Malta in exercise of its constitutional jurisdiction challenging the proceedings instituted against him by the House of Representatives on the ground that these proceedings, which were penal in nature, violated his right under section 40 of the Constitution (see paragraph 22 below) to be given a fair hearing by an independent and impartial court.
14. On 17, 18 and 19 March 1986, before the delivery of the judgment of the Civil Court, the applicant appeared before the House of Representatives with his lawyer.
It was submitted as a point of order that further proceedings on the case in the House should be suspended until the court had determined the constitutional issue, but the Speaker ruled that the House should proceed with the case before it. The question was then put to the applicant, "Does the editor consider himself to be guilty or not please? Mr Demicoli, do you consider yourself guilty?" When the applicant refused to answer whether he was guilty or not, he was threatened with further proceedings for contempt. One of the members of the House, Dr Joseph Brincat, stated on a point of order that the breach of privilege proceedings were to be considered as being of a criminal nature and accordingly - an argument accepted by the Speaker - the rule of criminal procedure that he who stands mute is presumed to have answered ‘not guilty’ should be applied.
Dr Cassar proceeded to adduce the evidence against the applicant, reading out the impugned article and concluding that it insulted Mr Debono Grech and Mr Bartolo in connection with their conduct in the House. The latter were invited by the Speaker to comment and both made statements to the effect that they considered themselves ridiculed in their capacity as members of the House, as well as in their private lives.
Mr Debono Grech subsequently said,
"Mr Speaker, this is the last time I come here and go to Court in connection with this dirt. And if they attack me personally I will neither seek redress here nor go to court. Okay? And if trouble crops up in my family, if you [pointing to defence lawyer] defend him [the applicant], I will [‘sue you’ (according to the Government’s translation)] [‘take my revenge on you’ (according to the applicant’s translation)]."
On 19 March 1986 the House adopted a resolution in the following terms:
"That the House after having considered the case of breach of its privileges caused by the article published at page 4 of the journal ‘MHUX fl-Interesstal-Poplu’ Number 63 of 3 January 1986;
Finds the editor Carmel Demicoli guilty of breach of privilege."
The House postponed the question of punishment until another sitting, due, according to the Government, to the pending constitutional proceedings.
15. On 16 May 1986 the Civil Court delivered judgment in favour of the applicant. It began by finding that the proceedings were not criminal in nature:
"The House of Representatives is not an ordinary court, although, because of the system of checks and balances already referred to, it also has quasi-judicial functions, apart from its principal function of legislator. And the law that provides for the privileges and contempt of the House (chapter 179) is not part of the criminal law of the country. It is true, as argued by the applicant, that there is a great resemblance between the penalties provided for by the Criminal Code and those provided for by this particular law. However, the decision of the House is not the criminal conviction that emerges from a decision of the Criminal Court, and the declaration of guilt for contempt and the consequential sanctions from such a declaration, despite having the same form as criminal penalties - admonitions, payment of money, imprisonment - are nonetheless not criminal convictions."
However, the Court continued:
"The House may take proceedings for contempt where, among other things, there results:
‘(k) the publication of any defamatory libel on the Speaker or any Member touching anything done or said by him as Speaker or as a Member in the House or in a Committee thereof;’ (Vide sect. 11 Chapter 179).
For the House to have jurisdiction to take proceedings for contempt there must be a defamatory libel (a mixed question of fact and law) and the law did not state that this is a question that must be established by the House, but something that must exist objectively; this being so, the declaration of the existence of the defamatory libel must first be made objectively by the Court, and then there will be proceedings in the House for contempt."
The Civil Court concluded that the Ordinance in question did not authorise the House of Representatives of its own initiative to define what is a defamatory libel, and that, if and when it acts upon a contempt, it must act according to the principles of natural justice. It ordered that the applicant be placed in the position in which he was before proceedings were instituted against him on the basis of breach of privilege and that no further proceedings be taken against him on the basis of the resolution and motion in question.
16. On 13 October 1986 the Constitutional Court, on appeal by both parties, disagreed with the conclusions of the Civil Court. It held that the Constitution authorised Parliament to enact laws establishing its privileges, immunities and powers, that accordingly the powers given to the House by virtue of Chapter 179 of the Laws of Malta did not violate the person’s right to a fair hearing by an independent court as guaranteed under section 40 of the Constitution and that in those circumstances the lower court had not been entitled to look further into the matter or to afford the remedies indicated in its judgment.
17. On 9 December 1986 the House of Representatives summoned the applicant before it in order to decide the penalty to be imposed upon him. On being asked if he wished to comment, the applicant stated through his lawyer that he had nothing to say regarding the punishment but would comply with the House’s decision. He was fined 250 Maltese liri and ordered to publish the resolution of 19 March 1986 in his paper.
18. Mr Debono Grech and Mr Bartolo participated throughout in the proceedings brought against the applicant, save that Mr Bartolo died before the sitting of 9 December 1986.
19. The applicant has not as yet paid the fine and no steps have been taken to enforce its recovery.
20. As applicable at the relevant time, the provisions of the Ordinance concerning the privileges of the House of Representatives were as follows:
"An oath or affirmation taken or made by a witness or by an expert before the House of Representatives or any Committee thereof shall for the purposes of the Criminal Code (Chapter 12) be comparable to an oath or affirmation taken or made before a Court in civil matters."
"(1) The House shall have the power to punish with a reprimand or with imprisonment for a period not exceeding sixty days or with a fine not exceeding five hundred liri or with both such fine and such imprisonment, any person, whether a Member of the House or not, guilty of any of the following acts:
...
(k) the publication of any defamatory libel on the Speaker or any Member touching anything done or said by him as Speaker or as a Member in the House or in a Committee thereof;
...
(4) For the purposes of this section - ‘publication’ means any act whereby any printed matter is or may be communicated to or brought to the knowledge of any person or whereby any words or visual images are broadcast; ...
(5) A person shall be deemed guilty of the acts mentioned in paragraph[s] (k) ... of subsection (1) of this section if the publication referred to in paragraph[s] (k) ... consists in the publication of such defamatory libel, false or perverted report, or misrepresentation in printed form in Malta, or in the distribution in Malta of such printed matter containing such defamatory libel, false or perverted report, or misrepresentation, from whatsoever place such printed matter may originate, or in any broadcast from any place in Malta or any place outside Malta of any such defamatory libel, false or perverted report, or misrepresentation."
Subsection (6) entitles the House to order in the case of a newspaper, in addition to the punishments under subsection (1), the publication in a subsequent issue of the motion finding the accused guilty of an act mentioned in paragraph (k) of subsection (1).
"(1) ...
(2) ... the House may direct the offender to be summoned by notice signed by the Clerk of the House, to appear before it at a specified sitting to answer the charge.
(3) If the offender fails to appear, it shall be lawful for the Speaker of the House on the direction thereof, to issue a warrant for the offender to be arrested and brought before the House.
...
(5) In all cases the offender shall be given the opportunity to speak in his own defence and, ..., he may be assisted by an advocate.
..."
"(1) ...
(2) When the House fines a person, the fine shall be paid to the Accountant General through the Clerk of the House within two clear days of its infliction. At the next following sitting the Clerk shall report to the Speaker the payment so made or its default; in the latter case the House may decide on the commutation of the fine into a term of imprisonment or give other directions at its discretion."
21. Defamatory libel is a criminal offence under the Press Act 1974 (Act No. XL of 1974).
"The offences mentioned in this Part of the Act are committed by means of the publication or distribution in Malta of printed matter, from whatsoever place such matter may originate, or by means of any broadcast."
"Save as otherwise provided in this Act, whosoever shall, by any means mentioned in Section 3 of this Act, libel any person, shall be liable on conviction:
(a) if the libel contains specific imputations against such person tending to injure his character and reputation, or to expose him to public ridicule or contempt, to imprisonment for a term not exceeding three months or to a fine (multa) not exceeding two hundred liri or to both such imprisonment and fine;
(b) in any other case, to imprisonment for a term not exceeding one month or to a fine."
22. The Constitution of Malta also refers to the privileges of Parliament.
Under section 34 no person is to be deprived of his personal liberty save as may be authorised by law, inter alia, in execution of an order of the House of Representatives punishing him for contempt of itself or of its members or for breach of privilege, or directing that he be brought before it.
Section 40 provides for any person charged with a criminal offence to be afforded a fair hearing within a reasonable time by an independent and impartial court established by law.
Section 41(1) guarantees freedom of expression with the following proviso under subsection (2):
"Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of subsection (1) of this section to the extent that the law in question makes provision -
(a) that is reasonably required -
(i) in the interests of defence, public order, public morality or decency, or public health; or
(ii) for the purpose of [...] protecting the privileges of Parliament [...]
... ."
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-88395
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF LYATSKAYA v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
TEXT: 4. The applicant was born in 1936 and lives in Petropavlosvk-Kamchatskiy, a town in the Kamchatka Region.
5. The applicant lives in a municipally maintained flat. She sued the local council’s planning department and a municipal maintenance company for overdue repairs. On 29 April 2002 the Petropavlovsk-Kamchatskiy Town Court awarded the applicant 60,729 Russian roubles (RUB) by way of damages and costs, and in addition ordered the defendants to
“eliminate the cause of the leak in [the applicant’s flat] in the third quarter of 2002 by way of reconstructive repairs of the end wall and roof according to the estimate for selective repairs of the house.”
This judgment became binding on 6 June 2002, but was not enforced immediately.
6. On 19 August 2002 bailiffs closed enforcement proceedings against the planning department, because in the meantime it had been disbanded. On 19 February 2003 the bailiffs closed enforcement proceedings against the maintenance company because of its insolvency. The writ of enforcement was passed to the Central Bank.
7. From December 2002 to September 2006 the applicant received three payments totalling RUB 19,155.49. In the second quarter of 2005 the applicant’s roof was repaired.
8. In separate proceedings in 2004 the applicant brought unsuccessful civil claims against the Petropavlovsk-Kamchatsk Town Council. These proceedings ended with the judgment of the Kamchatka Regional Court of 17 June 2004.
9. Under section 9 of the Federal Law on Enforcement Proceedings of 21 July 1997, a bailiff must enforce a judgment within two months.
VIOLATED_ARTICLES: 6
P1
VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-72935
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: GRANDCHAMBER
DATE: 2006
DOCNAME: CASE OF APICELLA v. ITALY
IMPORTANCE: 2
CONCLUSION: Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Preliminary objection dismissed (Article 34 - Victim);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court;Reasonable time);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
JUDGES: Luzius Wildhaber;Nicolas Bratza
TEXT: 12. The applicant was born in 1962 and lives in Pesco Sannita (Benevento).
13. On 17 January 1992 the applicant brought proceedings in the Benevento Magistrate's Court, sitting as an employment tribunal, seeking acknowledgement of her right to be reregistered on the lists of farmers and of her status in that capacity. That status had been contested by the Farmers' Social Insurance Fund (Servizio Contributi Agricoli Unificati – “the SCAU”). Her entitlement to a maternity allowance depended on the type of occupational status she had.
14. On 22 February 1992 the Magistrate's Court set the case down for the first hearing on 14 March 1994. On that day it also requested documents relating to the records drawn up by the labour inspector and ordered them to be filed at a hearing on 8 November 1995. On that date, at the request of counsel for the defendant, the Magistrate's Court declared the proceedings interrupted on the ground that the SCAU had been abolished.
15. On 24 November 1995 the applicant lodged an application with the court registry for the proceedings to be resumed against the social-security department (Istituto Nazionale di Previdenza Sociale). On 25 January 1996 the Magistrate's Court set the case down for hearing on 21 October 1997. However, that hearing was adjourned by the court of its own motion to 4 March 1999. The next three hearings, held between 8 April 1999 and 18 September 2000, were devoted to hearing evidence from witnesses. One of those hearings was adjourned at the parties' request. On 13 November 2000 the parties made their submissions.
16. In a judgment of the same date, the text of which was deposited with the registry on 21 November 2000, the Magistrate's Court dismissed the claim because the applicant had failed to show that a relationship of subordination had existed at her work.
17. On 24 April 2001 the applicant lodged an appeal with the Naples Court of Appeal. On 11 February 2001 the president set the appeal down for hearing on 26 January 2004. On that day the Court of Appeal reserved judgment. In a judgment of the same date, the text of which was deposited with the registry on 15 March 2004, the Court of Appeal dismissed the appeal.
18. On 3 October 2001 the applicant lodged an application with the Rome Court of Appeal under Law no. 89 of 24 March 2001, known as the “Pinto Act”, complaining of the excessive length of the above-described proceedings. She asked the court to rule that there had been a breach of Article 6 § 1 of the Convention and to order the Italian Government to pay compensation for the non-pecuniary damage sustained, plus an unquantified amount for costs and expenses.
19. In a decision of 28 February 2002, the text of which was deposited with the registry on 30 April 2002, the Court of Appeal found that the proceedings had been excessively long. It held as follows:
“...The Convention principle that everyone's case must be examined within a reasonable time has been breached, and the applicant has sustained non-pecuniary damage for the excessive length of the proceedings involving interests of considerable importance. In truth, the proceedings ... should not have lasted more than five years for two levels of jurisdiction. Non-pecuniary damage (distress on account of the prolongment of proceedings relating to an important situation in the applicant's life) must be deemed to exist in relation to the violation of Article 6 § 1 of the Convention – a violation which objectively exists on account of the unreasonable length of the proceedings.
Given the complexity of the case, the conduct of the parties has not caused any delays. Nor has the conduct of the court and the other authorities involved in disposing of the proceedings caused the excessive delay. In truth, the length of the adjournments and thus the delay must be considered to be due to structural reasons.
The damage has to be determined on the basis of Article 2056 of the Civil Code in accordance with the criteria established in Articles 1223, 1226 and 1227-I of the Civil Code and only the damage relating to the period beyond the reasonable time must be taken into consideration under section 3 of the Pinto Act.
In respect of non-pecuniary damage (moral distress on account of the length of the proceedings beyond the reasonable time, as above) an amount of 500 euros should be paid for each of the two years exceeding a reasonable time, plus statutory interest accruing from the day on which the reasonable time was exceeded, which was at the end of 1997 (the usual scale relating to just satisfaction has been redefined in relation to the negative outcome of the proceedings at first instance, which has an effect on the expectations of justice and therefore on the stress caused by the delay). ...”
The Court of Appeal awarded the applicant 2,500 euros (EUR), on an equitable basis, in compensation for non-pecuniary damage and EUR 710 for costs and expenses. That decision became final by 15 June 2003 at the latest and was executed by the authorities on an unspecified date between 23 March 2004 and 12 July 2004.
20. In a letter of 7 January 2003 the applicant informed the Court of the outcome of the domestic proceedings and asked it to resume its examination of her application.
In the same letter the applicant also informed the Court that she did not intend to appeal to the Court of Cassation because an appeal to that court could only be on points of law.
21. Award of just satisfaction in the event of a breach of the requirement to dispose of proceedings within a reasonable time and amendment to Article 375 of the Code of Civil Procedure.
CHAPTER II
Just satisfaction Section 2 Entitlement to just satisfaction
“1. Anyone sustaining pecuniary or non-pecuniary damage as a result of a violation of the Convention for the Protection of Human Rights and Fundamental Freedoms, ratified by Law no. 848 of 4 August 1955, on account of a failure to comply with the 'reasonable-time' requirement in Article 6 § 1 of the Convention, shall be entitled to just satisfaction.
2. In determining whether there has been a violation, the court shall have regard to the complexity of the case and, in the light thereof, the conduct of the parties and of the judge deciding procedural issues, and also the conduct of any authority required to participate in or contribute to the resolution of the case.
3. The court shall assess the quantum of damage in accordance with Article 2056 of the Civil Code and shall apply the following rules:
(a) only damage attributable to the period beyond the reasonable time referred to in subsection 1 may be taken into account;
(b) in addition to the payment of a sum of money, reparation for non-pecuniary damage shall be made by giving suitable publicity to the finding of a violation.”
Section 3 Procedure
“1. Claims for just satisfaction shall be lodged with the court of appeal in which the judge sits who has jurisdiction under Article 11 of the Code of Criminal Procedure to try cases concerning members of the judiciary in the district where the case in which the violation is alleged to have occurred was decided or discontinued at the merits stage or is still pending.
2. The claim shall be made on an application lodged with the registry of the court of appeal by a lawyer holding a special authority containing all the information prescribed by Article 125 of the Code of Civil Procedure.
3. The application shall be made against the Minister of Justice where the alleged violation has taken place in proceedings in the ordinary courts, the Minister of Defence where it has taken place in proceedings before the military courts and the Finance Minister where it has taken place in proceedings before the tax commissioners. In all other cases, the application shall be made against the Prime Minister.
4. The court of appeal shall hear the application in accordance with Articles 737 et seq. of the Code of Civil Procedure. The application and the order setting the case down for hearing shall be served by the applicant on the defendant authority at its elected domicile at the offices of State Counsel (Avvocatura dello Stato) at least fifteen days prior to the date of the hearing before the Chamber.
5. The parties may apply to the court for an order for production of all or part of the procedural and other documents from the proceedings in which the violation referred to in section 2 is alleged to have occurred and they and their lawyers shall be entitled to be heard by the court in private if they attend the hearing. The parties may lodge memorials and documents up till five days before the date set for the hearing or until expiry of the time allowed by the court of appeal for that purpose on an application by the parties.
6. The court shall deliver a decision within four months after the application is lodged. An appeal shall lie to the Court of Cassation. The decision shall be enforceable immediately.
7. To the extent that resources permit, payment of compensation to those entitled shall commence on 1 January 2002.”
Section 4 Time-limits and procedures for lodging applications
“A claim for just satisfaction may be lodged while the proceedings in which the violation is alleged to have occurred are pending or within six months from the date when the decision ending the proceedings becomes final. Claims lodged after that date shall be time-barred.”
Section 5 Communications
“If the court decides to allow an application, its decision shall be communicated by the registry to the parties, to State Counsel at the Court of Audit to enable him to start an investigation into liability, and to the authorities responsible for deciding whether to institute disciplinary proceedings against the civil servants involved in the proceedings in any capacity.”
Section 6 Transitional provisions
“1. Within six months after the entry into force of this Act, anyone who has lodged an application with the European Court of Human Rights in due time complaining of a violation of the 'reasonable-time' requirement contained in Article 6 § 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms, ratified by Law no. 848 of 4 August 1955, shall be entitled to lodge a claim under section 3 hereof provided that the application has not by then been declared admissible by the European Court. In such cases, the application to the court of appeal must state when the application to the said European Court was made.
2. The registry of the relevant court shall inform the Minister for Foreign Affairs without delay of any claim lodged in accordance with section 3 and within the period laid down in subsection 1 of this section.”
Section 7 Financial provisions
“1. The financial cost of implementing this Act, which is put at 12,705,000,000 Italian lire from 2002, shall be met by releasing funds entered in the three-year budget 2001-03 in the chapter concerning the basic current-liability estimates from the 'special fund' in the year 2001 forecast of the Ministry of the Treasury, Economy and Financial Planning. Treasury deposits shall be set aside for that purpose.
2. The Ministry of the Treasury, Economy and Financial Planning is authorised to make the appropriate budgetary adjustments by decree.”
22. On appeal from decisions delivered by the courts of appeal in “Pinto” proceedings, the Court of Cassation, sitting as a full court (Sezioni Unite), gave four judgments (nos. 1338, 1339, 1340 and 1341) on 27 November 2003, the texts of which were deposited with the registry on 26 January 2004, quashing the appeal court's decision and remitting the case for a rehearing. It held that “the case-law of the Strasbourg Court is binding on the Italian courts regarding the application of Law no. 89/2001”.
In its judgment no. 1340 it affirmed, inter alia, the principle that
“the court of appeal's determination of non-pecuniary damage in accordance with section 2 of Law no. 89/2001, although inherently based on equitable principles, must be done in a legally defined framework since reference has to be made to the amounts awarded, in similar cases, by the Strasbourg Court. Some divergence is permissible, within reason.”
23. Extracts from the plenary Court of Cassation's judgment no. 1339 deposited with the registry on 26 January 2004
“... 2.- The present application poses the fundamental question of what legal effect must be given – in implementing the Law of 24 March 2001 no. 89, and in particular in determining the non-pecuniary damage arising out of the breach of the reasonable length of proceedings requirement – to the judgments of the European Court of Human Rights, whether considered generally as interpretative guidelines which the said Court has laid down with regard to the consequences of the said violation, or with reference to a specific case in which the European Court has already had occasion to give a judgment on the delay in reaching a decision. ...
As stipulated in section 2.1 of the said Law, the legal fact which gives rise to the right to the just satisfaction that it provides for is constituted by the “violation of the Convention for the Protection of Human Rights and Fundamental Freedoms, ratified in accordance with the Law of 4 August 1955 no. 848, for failure to comply with the reasonable time referred to in Article 6, paragraph 1 of the Convention.” In other words, Law no. 89/2001 identifies the fact constituting the right to compensation by reference to a specific provision of the European Convention on Human Rights. This Convention instituted a Court (the European Court of Human Rights, with its seat in Strasbourg) to ensure compliance with the provisions contained therein (Article 19). Accordingly, the competence of the said court to determine, and therefore to interpret, the significance of the said provisions must be recognised.
As the fact constituting the right conferred by Law no. 89/2001 consists of a violation of the European Convention on Human Rights, it is for the Court of the European Convention on Human Rights to determine all the elements of such a legal fact, which thus ends by being “brought into conformity” by the Strasbourg Court, whose case-law is binding on the Italian courts in so far as the application of Law no. 89/2001 is concerned.
It is not necessary therefore to pose the general problem of the relationships between the European Convention on Human Rights and the internal judicial system, which the Advocate-General (Procuratore Generale) has amply discussed in court. Whatever opinion one may have about that controversial issue and therefore about the place of the European Convention on Human Rights in the context of the sources of domestic law, it is certain that the direct implementation in the Italian judicial system of a provision of the European Convention on Human Rights, established by Law no. 89/2001 (that is, by Article 6 § 1 in the part relating to “reasonable time”), cannot diverge from the interpretation which the European Court gives of the same provision.
The opposite argument, which would permit a substantial divergence between the application accorded to Law no. 89/2001 in the national system and the interpretation given by the Strasbourg Court to the right to reasonable length of proceedings, would deprive the said Law no. 89/2001 of any justification and cause the Italian State to violate Article 1 of the European Convention on Human Rights, according to which 'The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention' (including the said Article 6, which provides for the right to have a case decided within a reasonable length of time).
The reason behind the enactment of Law no. 89/2001 was the need to provide a domestic judicial remedy against violations in respect of the duration of proceedings, so as to give effect to the subsidiary character of intervention on the part of the Court of Strasbourg, expressly provided for by the European Convention on Human Rights (Article 35: “the Court may only deal with the matter after all domestic remedies have been exhausted”). The European system for the protection of human rights is founded on the said principle of subsidiarity. From it derives the duty of the States which have ratified the European Convention on Human Rights to guarantee to individuals the protection of the rights recognised by the European Convention on Human Rights, above all in their own internal order and vis-à-vis the organs of the national judicial system. And this protection must be “effective” (Article 13 of the European Convention on Human Rights), that is, of a kind to remedy the claim without the need for recourse to the Strasbourg Court.
The domestic remedy introduced by Law no. 89/2001 did not previously exist in the Italian system, with the consequence that appeals against Italy in respect of a violation of Article 6 of the European Convention on Human Rights had “clogged” (the term used by rapporteur Follieri in the sitting of the Senate of 28 September 2000) the European Court. The Strasbourg Court observed, prior to Law no. 89/2001, that the said failures to comply on the part of Italy “reflect a continuing situation that has not yet been remedied and in respect of which litigants have no domestic remedy. This accumulation of breaches accordingly constitutes a practice that is incompatible with the Convention” (see the four judgments of the Court delivered on 28 July 1999 in the cases of Bottazzi, Di Mauro, Ferrari and A. P.).
Law no. 89/2001 constitutes the domestic remedy to which a “victim of a violation” (as defined by Article 34 of the European Convention on Human Rights) of Article 6 (failure to comply with the reasonable-time requirement) must have recourse before applying to the European Court to claim the “just satisfaction” provided for in Article 41 of the European Convention on Human Rights, which, when the violation exists, is only awarded by the Court “if the internal law of the High Contracting Party concerned allows only partial reparation to be made”. Law no. 89/2001 has therefore allowed the European Court to declare inadmissible applications lodged with it (including before the Act was passed) and aimed at obtaining just satisfaction provided for in Article 41 of the European Convention on Human Rights for the excessive length of proceedings (Brusco v. Italy, decision of 6 September 2001).
This mechanism for implementation of the European Convention on Human Rights and observance of the principle of subsidiarity in respect of interventions of the European Court of Strasbourg does not operate, however, in cases in which the Court holds that the consequences of the established violation of the European Convention on Human Rights have not been redressed by domestic law or that this has been done only “partially”, because in such an event the said Article 41 provides for the intervention of the European Court to protect the “victim of the violation”. In such cases an individual application to the Strasbourg Court on the basis of Article 34 of the European Convention on Human Rights is admissible (Scordino and Others v. Italy, decision of 27 March 2003) and the Court acts directly to protect the rights of the victim whom it considers not to have been adequately protected by domestic law.
The judge of the adequacy or inadequacy of the protection that the victim has had from domestic law is, obviously, the European Court, whose duty it is to apply Article 41 of the European Convention on Human Rights to ascertain whether, in the presence of a violation of a provision of the European Convention on Human Rights, the internal law has been able to fully redress the consequences of this violation.
The argument whereby, in applying Law no. 89/2001, the Italian court may follow a different interpretation from that which the European Court has given to the provisions of Article 6 of the European Convention on Human Rights (violation of which is the fact giving entitlement to the right to compensation attributed by the said national law) implies that the victim of the violation, if he or she receives reparation at national level considered inadequate by the European Court, must obtain the just satisfaction provided for in Article 41 of the European Convention on Human Rights from the latter Court. This would defeat the purpose of the remedy provided for in Italian law by Law no. 89/2001 and entail a violation of the principle of the subsidiarity of the intervention of the Strasbourg Court.
It is therefore necessary to concur with the European Court of Human Rights, which, in the above-mentioned decision on the Scordino application (concerning the inadequacy of the protection afforded by the Italian courts in implementing Law no. 89/2001), affirmed that “it follows from the principle of subsidiarity ... that the national courts must, where possible, interpret and apply domestic law in accordance with the Convention”.
... The preparatory documents of Law no. 89/2001 are even more explicit. In the report concerning the bill of Senator Pinto (proceedings of the Senate no. 3813 of 16 February 1999) it is affirmed that the compensatory mechanism proposed in the legislative initiative (and then adopted by the Act) secures for the applicant “a protection analogous to that which he or she would receive in the international court”, as the direct reference to Article 6 of the European Convention on Human Rights makes it possible to transfer to domestic level “the limits of applicability of the same provision existing at international level, limits which depend essentially on the State and on the development of the case-law of the Strasbourg authorities, especially that of the European Court of Human Rights, whose decisions must therefore guide ... the domestic court in the definition of these limits”.
... 6. – The considerations expounded in sections 3-5 of the document refer in general to the importance of the interpretative guidance of the European Court on the implementation of Law no. 89/2001 with regard to reparation for non-pecuniary damage.
In this particular instance, however, any possibility for the national court to exclude non-pecuniary damage (despite having found a violation of Article 6 of the European Convention on Human Rights) must be considered as non-existent because such is precluded by the previous decision of the European Court which, with reference to the same proceedings, had already ascertained that the unjustified delay in reaching a decision had had consequences involving non-pecuniary damage for the applicant, which the Court itself redressed for a limited period. From such a decision of the European Court it follows that, once the national court has ascertained that the violation has continued in the period following that considered in the said decision, the applicant has continued to suffer non-pecuniary damage, which must be compensated for in application of Law no. 89/2001.
It cannot therefore be maintained – as the Rome Court of Appeal has done – that compensation is not due because of the small amounts at stake in the proceedings in question. Such a reason, apart from being rendered immaterial by the fact that the European Court has already ruled that non-pecuniary damage had been sustained because of delay in the same action, is in any case incorrect, because the amount of what is at stake in an action in which non-compliance with reasonable time-limits has been ascertained can never have the effect of excluding non-pecuniary damage, given that the anxiety and distress resulting from the length of the proceedings normally also occur in cases in which the amounts at stake are small; hence this aspect may have the effect of reducing the amount of compensation but not of totally excluding it.
7 – In conclusion the decision appealed against must be quashed and the case remitted to the Rome Court of Appeal, which, in a different composition, will order payment to the applicant of the non-pecuniary damages payable as a result of the violation of the reasonable-time requirement for the period following 16 April 1996 alone, taking as a reference point payments of the same kind of damages by the European Court of Human Rights, from which it may diverge, but only to a reasonable extent (HR Court, 27 March 2003, Scordino v. Italy)”.
24. The Court of Cassation held as follows:
“...Where the victim of unreasonably lengthy proceedings dies prior to the entry into force of Law no. 89 of 2001 [known as the “Pinto Act”] this shall preclude a right [to just satisfaction] from arising and passing to the heirs, in accordance with the general rule that a person who has died cannot become entitled to a right conferred by an Act that is passed after their death...”
25. The Court of Cassation judges noted that the right to compensation for a violation of the right to a hearing within a reasonable time derived from the Pinto Act. The mechanism set in place by the European standard did not give applicants a cause of action before the domestic courts. Accordingly, the right to “just satisfaction” could neither be acquired nor transferred by a person who had already died by the time the Pinto Act came into force. The fact that the deceased had, while alive, lodged an application with the Strasbourg Court was not decisive. Section 6 of the Pinto Act did not constitute, as the applicants had maintained, a procedural standard bringing about a transfer of powers from the European Court to the domestic courts.
26. In this case, which concerned the possibility or otherwise of transferring to heirs the right to compensation deriving from a breach of Article 6 § 1 on account of the length of the proceedings, the First Division of the Court of Cassation referred the case to the full court indicating that there was a conflict between the case-law authorities, that is, between the restrictive approach taken by the Court of Cassation in the earlier judgments regarding heirs and the Pinto Act and the four judgments delivered by the Court of Cassation, sitting as a full court, on 26 January 2004 to the extent that a less strict interpretation would lead to the conclusion that this right to compensation has existed since Italy ratified the European Convention on 4 August 1955.
27. In the case giving rise to the order mentioned above referring the case to the full court (see preceding paragraph), the Court of Cassation, sitting as a full court, established the following principles, thus preventing any further conflicting decisions being given by the courts:
(i) Law no. 848 of 4 August 1955, which ratified the Convention and made it enforceable, introduced into domestic legal order the fundamental rights, belonging to the category of rights conferred on the individual by public law, provided for in the first section of the Convention and which correspond to a large extent with those set forth in Article 2 of the Constitution. In that respect the Convention provisions are confirmatory and illustrative. ...
(ii) It is necessary to reiterate the principle that the act giving rise to the right to reparation conferred by domestic law corresponds to a breach of the provision in Article 6 of the Convention, which is immediately applicable in domestic law.
The distinction between the right to a hearing within a reasonable time, introduced by the European Convention on Human Rights (or even pre-existing as a constitutionally protected value), and the right to equitable reparation, which was allegedly introduced only by the Pinto Act, cannot be allowed in so far as the protection provided by the domestic courts does not depart from that previously offered by the Strasbourg Court, the domestic courts being bound to comply with the case-law of the European Court. ...
(iii) Accordingly, the right to equitable reparation for loss sustained as a result of the unreasonable length of proceedings prior to the entry into force of Law no. 89/2001 must be acknowledged by the domestic courts even in favour of the heirs of a party who introduced the proceedings before that date, subject only to the condition that the claim has not already been lodged with the Strasbourg Court and the Court has not ruled on admissibility. ...
28. This judgment of the Court of Cassation concerned an appeal by the Ministry of Justice challenging the Court of Appeal's award of non-pecuniary damages to a juristic person. The Court of Cassation referred to the decision reached in the case of Comingersoll v. Portugal [GC], no. 35382/97, ECHR 2000IV and, after referring to the four judgments of the full court delivered on 26 January 2004, found that its own case-law was not in line with the European Court. It held that there was no legal barrier to awarding just satisfaction to “juristic” persons according to the criteria of the Strasbourg Court. Accordingly, since the Court of Appeal had correctly decided the case the appeal was dismissed.
29. The Court of Cassation made the following observations:
“ ... [Whereas] non-pecuniary damage is the normal, albeit not automatic, consequence of a breach of the right to a hearing within a reasonable time, it will be deemed to exist, without it being necessary to specifically prove it (directly or by presumption), on the basis of the objective fact of the breach, on condition that there are no special circumstances indicating the absence of any such damage in the actual case concerned (Cass. A.P. 26 January 2004 nos. 1338 and 1339).
– the assessment on an equitable basis of compensation for non-pecuniary damage is subject – on account of the specific reference in section 2 of Law no. 89 of 24 March 2001 to Article 6 of the European Convention on Human Rights (ratified by Law no. 848 of 4 August 1955) – to compliance with the Convention, in accordance with the judicial interpretation given by the Strasbourg Court (non-compliance with which results in a violation of the law), and must therefore, as far as possible, be commensurate, in substantive and not merely formal terms, with the amounts paid in similar cases by the European Court, it being possible to adduce exceptional circumstances that suggest themselves in the particular case, on condition that they are reasoned, not excessive and not unreasonable (Cass. A.P. 26 January 2004 no. 1340). ...
– a discrepancy in the method of calculation [between the Court's case-law and section 2 of the Pinto Act] shall not affect the general vocation of Law no. 89 of 2001 to meet the objective of awarding proper compensation for a breach of the right to a hearing within a reasonable time (vocation acknowledged by the European Court in, inter alia, a decision of 27 March 2003 in Scordino v. Italy (application no. 36813/97)), and accordingly shall not allow any doubt as to the compatibility of that domestic standard with the international commitments entered into by the Italian Republic when ratifying the European Convention and the formal recognition, also at constitutional level, of the principle stated in Article 6 § 1 of that Convention...”
30. In the report CM/Inf/DH(2004)23, revised on 24 September 2004, the Ministers' deputies made the following indications regarding an assessment of the Pinto remedy:
“...11. As regards the domestic remedy introduced in 2001 by the “Pinto Act”, a number of shortcomings remain, particularly in connection with the effectiveness of the remedy and its application in conformity with the Convention: in particular, the law does not provide yet for the acceleration of pending proceedings. ...
109. In the framework of its examination of the 1st annual report, the Committee of Ministers expressed concern at the fact that this legislation did not foresee the speeding up of the proceedings and that its application posed a risk of aggravating the backlog of the appeal courts. ...
112. It should be pointed out that in the framework of its examination of the 2nd annual report, the Committee of Ministers had noted with concern that the Convention had no direct effect and had consequently invited the Italian authorities to intensify their efforts at national level as well as their contacts with the different bodies of the Council of Europe competent in this field. ...”
31. In this interim resolution the Ministers' deputies indicated as follows:
“The Committee of Ministers
Noting ...
“...the setting-up of a domestic remedy providing compensation in cases of excessive length of proceedings, adopted in 2001 (the "Pinto” law), as well as the recent development of the case-law of the Court of cassation, increasing the direct effect of the case-law of the European Court in the Italian legal system, while noting that this remedy still does not enable for acceleration of proceedings so as to grant effective redress to all victims;
Stressing that the setting-up of domestic remedies does not dispense states from their general obligation to solve the structural problems underlying violations;
Finding that despite the efforts undertaken, numerous elements still indicate that the solution to the problem will not be found in the near future (as evidenced in particular by the statistical data, the new cases before both domestic courts and the European Court, the information contained in the annual reports submitted by the government to the Committee and in the reports of the Prosecutor General at the Court of cassation); ...
Stressing the importance the Convention attaches to the right to fair administration of justice in a democratic society and recalling that the problem of the excessive length of judicial proceedings, by reason of its persistence and extent, constitutes a real danger for the respect of the rule of law in Italy; ...
URGES the Italian authorities to enhance their political commitment and make it their effective priority to meet Italy's obligation under the Convention and the Court's judgments, to secure the right to a fair trial within a reasonable time to all persons under Italy's jurisdiction. ...”
32. The European Commission for the efficiency of justice was set up at the Council of Europe by Resolution Res(2002)12 with the aim of (a) improving the efficiency and the functioning of the justice of member States with a view to ensuring that everyone within their jurisdiction can enforce their legal rights effectively, thereby generating increased confidence of the citizens in the justice system and (b) enabling a better implementation of the international legal instruments of the Council of Europe concerning efficiency and fairness of justice.
33. In its framework programme (CEPEJ (2004) 19 Rev 2 § (7) the CEPEJ noted that “the mechanisms which are limited to compensation are too weak and do not adequately incite the States to modify their operational process, and provide compensation only a posteriori in the event of a proven violation instead of trying to find a solution for the problem of delays.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-110379
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF KORGUL v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Access to court)
JUDGES: David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 7. The applicant was born in 1962 and lives in Lublin.
8. On 6 June 2007 the Lublin District Court convicted the applicant of several robberies and sentenced him to 3 years and 6 months’ imprisonment. By a judgment of 28 December 2007 the Lublin Regional Court upheld the firstinstance judgment.
9. On 4 January 2008 the applicant requested the Lublin Regional Court to grant him a legal-aid lawyer for the purpose of lodging a cassation appeal with the Supreme Court.
10. On 7 February 2008 a legal-aid lawyer was assigned.
11. By a letter of 14 March 2008 the lawyer informed the court in a one sentence-long opinion that he had not found any grounds on which to prepare a cassation appeal. This statement did not include any reasons for the refusal to lodge a cassation appeal.
12. By a letter of 17 March 2008 the court forwarded the lawyer’s statement to the applicant. The letter read as follows:
“...The Lublin Regional Court informs you that your legal-aid lawyer, advocate Mr W.W., informed the court in writing that he had not found any grounds to prepare a cassation appeal. In consequence, the time-limit for lodging a cassation appeal by a lawyer of your own choice expires on 7 April 2008.”
13. The letter as well as the opinion were served on the applicant on an unspecified date.
14. On 27 March 2008 the Lublin Regional Court refused to assign a new legal-aid lawyer to the applicant. The court stated that because the previous legal-aid lawyer had not found any grounds on which to draw up a cassation appeal, the mere fact that the applicant disagreed with this decision could not require the verification of this opinion by successive lawyers.
15. The relevant domestic law and practice concerning the procedure for lodging cassation appeals with the Supreme Court against judgments of the appellate courts are stated in the Court’s judgments in the cases of Kulikowski v. Poland, no. 18353/03, §§ 19-27, ECHR 2009... (extracts) and Antonicelli v. Poland, no. 2815/05, §§ 14-22, 19 May 2009.
16. In its decision of 25 March 1998 the Supreme Court stated that the refusal of a legal-aid lawyer to lodge a cassation appeal did not constitute a valid ground for granting retrospective leave to lodge such an appeal by another lawyer out of time (V KZ 12/98). It confirmed this ruling in a further decision of 1 December 1999. The Supreme Court observed that the court could only assign a new legal-aid lawyer to the case if it were shown that the first lawyer had been negligent in his or her task of assessing whether a cassation appeal had any prospects of success. If this were not the case, a court was not obliged to assign a new legal-aid lawyer to represent the convicted person and its refusal was not subject to appeal (III KZ 139/99). The Supreme Court reiterated its position in a number of other decisions (e.g. II KZ 11/02, II KZ 36/02).
17. On 26 February 2002 the Supreme Court examined a case where a legal-aid lawyer had refused to represent a convicted person for the purposes of cassation proceedings, finding that a cassation appeal would offer no prospects of success. It held that in such a situation the appellate court was obliged to instruct the defendant that the time-limit for lodging a cassation appeal started to run only on the date on which the defendant was served with the lawyer’s refusal and not on the earlier date when the judgment of the appellate court was served on the defendant himself. It stated that it was not open to doubt that a defendant faced with a legal-aid lawyer’s refusal had the right to take other measures to seek legal assistance necessary for effective lodging of a cassation appeal (III KZ 87/01). The Supreme Court reiterated its position in a decision of 6 May 2008 (II KZ 16/08) and in a number of similar decisions given in 2008.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-82632
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF GLAS NADEZHDA EOOD AND ANATOLIY ELENKOV v. BULGARIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 10;Not necessary to examine Art. 9;Violation of Art. 13+10;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Peer Lorenzen
TEXT: 5. Mr Elenkov, who was born in 1972 and lives in Sofia, is a Christian and a follower of the Protestant Church in Bulgaria. In 2000 he decided to set up Glas Nadezhda EOOD, through which he would apply for a broadcasting licence for a religious radio station. He obtained support for this initiative from many domestic and foreign religious figures of various denominations, as well as from the Directorate of Religious Denominations at the Council of Ministers.
6. On 1 June 2000 the Council of Ministers announced that a number of frequencies for local radio broadcasting would be made available to private operators in several cities. Ten such licences were available for Sofia.
7. On 16 August 2000 Glas Nadezhda EOOD applied to the State Telecommunications Commission (“the STC” – see paragraphs 24 and 25 below) for a broadcasting licence for a radio station with Christian religious programming for the Sofia City Region. In support of its application it presented, inter alia, a business plan, a programme project, a programme concept, a programme profile, and a programme scheme. It was apparent from these that it intended to broadcast mainly Christian religious programming.
8. In line with the established procedure, the application was forwarded to the National Radio and Television Committee (“the NRTC” – see paragraph 27 below). After deliberating on the application on 26 September 2000, the Committee refused in a decision of 2 October 2000, which was not notified to Glas Nadezhda EOOD, to grant a broadcasting licence. It stated, without adding further detail, that although the company had submitted all the requisite documents, its programme documents did not correspond to points 3.4, 3.5 and 4.3 of the NRTC's criteria for licensing regional overtheair radio operators, and only partly corresponded to points 3.1, 3.2, 3.3, 4.1 and 4.2 (see paragraph 28 below). Furthermore, Glas Nadezhda EOOD had no prior experience of creating programmes in the region.
9. In accordance with the established procedure (see paragraph 26 below), this decision was sent to the STC.
10. In a decision of 2 November 2000 the STC refused to grant a broadcasting licence to Glas Nadezhda EOOD. It stated that its refusal was based on the NRTC's decision of 2 October 2000.
11. Glas Nadezhda EOOD lodged an application for judicial review of the STC's decision with the Supreme Administrative Court. It submitted that, since it was not clear whether the NRTC's decision was subject to direct review, the court should first examine its lawfulness before ruling on the lawfulness of the STC's decision. Glas Nadezhda EOOD further argued that it had produced all of the requisite documents, each of which corresponded to the NRTC's criteria. The fact that no reasons had been given on how, in the NRTC's view, these documents failed to meet the criteria, was in breach of the rules of procedure and the requirement that administrative decisions be reasoned. On the contrary, all of the NRTC's criteria had been complied with. The decisions had also been in breach of the substantive law and did not correspond to the latter's object and purpose. In a supplementary memorial Glas Nadezhda EOOD made detailed submissions in respect of each of its alleged failures to comply with the relevant NRTC criteria.
12. In a judgment of 12 March 2001, a threemember panel of the Supreme Administrative Court dismissed the application. It held that the NRTC's decision was subject to review in separate proceedings. However, Glas Nadezhda EOOD had not sought such review, whereas indirect review of that decision in proceedings against the STC's decision was impossible. The court went on to say that the STC's decision concerned the allocation of the radio spectrum, whereas the NRTC's decision related to the broadcasting content. It was therefore impossible to grant a broadcasting licence without a prior finding by the NRTC that it would be used for broadcasting quality programmes. In issuing its decision, the STC was therefore bound by the NRTC's decision and the latter's refusal had effectively precluded the former from granting the requested licence.
13. Glas Nadezhda EOOD appealed on points of law to a five-member panel of the Supreme Administrative Court. It argued, inter alia, that while it could be accepted that the NRTC's refusal was binding on the STC, the former was bound to give reasons for its decision.
14. In a final judgment of 11 July 2001 the fivemember panel of the Supreme Administrative Court upheld the three-member panel's judgment, holding, inter alia, that the STC was bound by the NRTC's decision and could not have reviewed its lawfulness. Nor could the court, in proceedings against the STC's decision, examine the lawfulness of the NRTC's decision. It could do so only pursuant to an application for judicial review of the latter's decision.
15. Having been apprised of the tenor of the NRTC's decision in the course of the proceedings for judicial review of the STC's decision, on 1 March 2001 Glas Nadezhda EOOD made an application for its judicial review. It submitted that it had provided all necessary documents, thus establishing that it had complied with the NRTC's licensing criteria. However, that body had not pointed out any perceived deficiencies, thus failing to provide a duly reasoned decision and acting in breach of the rules of administrative procedure.
16. In a judgment of 21 March 2002 a threemember panel of the Supreme Administrative Court dismissed the application. It held that the NRTC's assessment of whether the licence application met its criteria was not subject to judicial scrutiny, since the NRTC enjoyed discretion in that respect. In the instant case it had found that the programme documents submitted by Glas Nadezhda EOOD did not meet its requirements for regional targeting, societal function and business perspective of the programming, and only partially met its criteria regarding the justification and uniqueness of its programme profile, conformity with the audience's expectations and professional and technological resources. These findings fell within the exclusive province of the NRTC.
17. Glas Nadezhda EOOD appealed on points of law to a fivemember panel of the Supreme Administrative Court, reiterating its arguments.
18. In a final judgment of 28 December 2002 the five-member panel of the Supreme Administrative Court upheld the threemember panel's judgment, fully endorsing its reasoning.
19. On 16 November 2000 Mr Elenkov, acting on behalf of Glas Nadezhda EOOD, requested the NRTC to provide it with a copy of the minutes of the deliberations at which it had examined its application for a broadcasting licence. He relied on the Access to Public Information Act 2000 (“Закон за достъп до обществена информация”).
20. As the NRTC did not reply within the statutory timelimit, Mr Elenkov asked the Sofia City Court to review its tacit refusal.
21. In a judgment of 2 July 2001 the Sofia City Court quashed the NRTC's tacit refusal and ordered it to reply to the request for information. It held that the minutes of the NRTC's deliberations were public information within the meaning of the Access to Public Information Act 2000.
22. The NRTC did not appeal and shortly afterwards the judgment entered into force. However, at the time of the latest receipt of information from the applicants (26 June 2006) the NRTC had still not complied with the judgment and had not replied to the applicants' request for information.
23. The relevant provisions of the Constitution of 1991 read as follows:
“1. Freedom of conscience, freedom of thought and choice of religion or of religious or atheistic views shall be inviolable. The State shall assist in the maintenance of tolerance and respect between the adherents of different denominations, and between believers and non-believers.
2. Freedom of conscience and religion shall not be exercised to the detriment of national security, public order, public health and morals, or of the rights and freedoms of others.”
“1. Everyone is entitled to express an opinion or to publicise it through words, written or oral, sound, or image, or in any other way.
2. This right shall not be used to the detriment of the rights and reputation of others, or for the incitement of a forcible change of the constitutionally established order, the perpetration of a crime, or the incitement of enmity or violence against anyone.”
“1. The press and the other mass media shall be free and not subject to censorship.
2. Printed matter or another information medium may be stopped or confiscated only pursuant to an act of the judicial authorities, where it encroaches on good morals or incites to a forcible change of the constitutionally established order, the perpetration of a crime or an act of violence against the person. ...”
“1. Everyone has the right to seek, receive and impart information. The exercise of that right may not be directed against the rights and the good name of other citizens, nor against national security, public order, public health or morals.
2. Citizens shall have the right to information from state bodies or agencies on any matter of legitimate interest to them, unless the information is a state secret or a secret protected by law, or it affects the rights of others.”
24. At the material time the Telecommunications Act 1998 (“Закон за далекосъобщенията”) regulated all forms of telecommunication, such as telephony and radio and television broadcasting. The main regulatory body having authority under the Act was the STC (renamed Telecommunications Regulation Commission in February 2002). At the relevant time it had the power to, inter alia, grant, amend, supplement, freeze, discontinue and withdraw radio and television broadcasting licences, following a decision by the NRTC (section 27(5) of the Act, as in force at the material time).
25. The STC was a collective body attached to the Council of Ministers (section 22(1) of the Act, as in force at the material time). It had five members, nominated by the Council of Ministers and appointed by the prime minister for a term of seven years, renewable once (section 23(1) and (2) of the Act, as in force at the material time). The members could be dismissed prematurely only if they resigned, seriously breached the provisions of the Act, seriously or systematically violated their official duties, committed a wilful publicly prosecutable criminal offence, or were unable to perform their duties for more than six months (section 23(4) of the Act, as in force at the material time). The organisation and the operation of the STC and of its secretariat were laid down in regulations issued by the Council of Ministers (section 26(1) of the Act, as in force at the material time).
26. Under section 105(1) of the Radio and Television Act 1998 (“Закон за радиото и телевизията”), as in force at the relevant time, radio and television broadcasting was only allowed under a licence granted by the STC. The application for a licence had to be filed with the STC and accompanied by, as relevant, a programme project, a programme concept, a programme profile and a programme scheme (section 111 of the Act, as in force at the relevant time). A STC official checked the submitted documents and, if he or she found any irregularities, advised the applicant, which then had seven days to rectify them. If the applicant failed to do so, the application was not considered (section 112 of the Act, as in force at the relevant time). The STC was to transmit the accepted application, plus enclosures, to the NRTC (section 113 of the Act, as in force at the relevant time), which then had to make a reasoned decision on the application within one month (section 115(1) of the Act, as in force at the relevant time). The decision was then transmitted to the STC within seven days (section 115(2) of the Act, as in force at the relevant time), which issued the licence, where appropriate, within one month (section 115(4) of the Act, as in force at the relevant time).
27. The NRTC was an independent body responsible for protecting freedom of expression, the independence of radio and television operators and the interests of the audience (section 20(1) of the Act, as in force at the relevant time). Five of its nine members were elected by the National Assembly, and the remaining four were appointed by the President of the Republic (section 24(1) of the Act, as in force at the relevant time). Alongside some consultative powers, it was entrusted with supervising the activities of radio and television operators and granting, modifying and withdrawing broadcasting licences (section 32(1)(1) and (9) of the Act, as in force at the relevant time). In November 2001 the NRTC was renamed the Electronic Media Council.
28. In issue 5/6 of 2000 of its bulletin, the NRTC published its “Programme criteria for the licensing of regional overtheair radio operators”. They read as follows:
“1. Legal status
1.1. Conformity to the requirements of section 105 of the Radio and Television Act 1998. Note: compliance with this criterion is mandatory for admitting the applicant to assessment under the remainder of the criteria.
1.2. Transparency and structure of the [operator's] capital 0 to 5 points
2. Experience in setting up radio programmes
2.1. Degree of legality of the previous experience 0 to 10 points
Note: the assessment is made on an inverse scale; an applicant which has received 0 points is not assessed under criteria 2.2., 2.3. and 2.4.
2.2. Population coverage ratio of the [radio station's] communication 0 to 5 points
Note: the population coverage ratio of the communication is assessed on the basis of the audience for the region in percentage points.
2.3. Uniqueness of the form of communication 0 to 3 points
2.4. Societal function 0 to 3 points
– information and commentary
– culture and education
– programming for disadvantaged groups
2.5. Previously established violations of the [Radio and Television Act] 0 to 5 points
Note: the assessment is made on an inverse scale, on the basis of a report by the NRTC's monitoring department.
3. Programme aims
3.1. Justification of the selected programme profile 0 to 10 points
Note: [If awarded] 0 points the applicant is not assessed under the other criteria.
3.2. Uniqueness (for the region) of the programme profile 0 to 10 points
3.3. Conformity with the audience's expectations 0 to 5 points
3.4. Regional targeting of the programme 0 to 5 points
3.5. Societal function 0 to 10 points
– information and commentary
– culture and education
– programming for disadvantaged groups
4. Capacity to produce the programme
4.1. Professional resources 0 to 5 points
4.2. Technological resources 0 to 5 points
4.3. Business perspective 0 to 10 points
5. Setting up of radio networks in more than one region
5.1. Programme capabilities for supra-regional communication
5.2. Regional targeting of the individual programmes
Note: the assessment under [criteria] 5.1. and 5.2. is from 0 to 3 points and is made by multiplying the two results.
The maximum number of points under all criteria is 100.”
29. On 25 June 1999 the Constitutional Court gave judgment (реш. № 10 от 25 юни 1999 г. по к.д. № 36 от 1998 г., обн. ДВ, бр. 60 от 2 юли 1999 г.) in proceedings brought by fiftytwo members of Parliament who considered that a number of provisions of the Radio and Television Act 1998 should be declared contrary to the Constitution. The court held, as relevant:
“Under the Telecommunications Act [1998], licences are granted by the STC and approved by the Council of Ministers. Whereas this licensing relates to the setting up of telecommunication networks and to the use of the radio frequency spectrum and its allocation, the NRTC's decision under the [Radio and Television Act 1998] relates to the content of the services which will be broadcast. The provisions of the [Telecommunications Act 1998] relate to licensing for the setting up of telecommunications networks and the provision of services through the radio frequency spectrum. Supervision of the preparation, creation and broadcasting of radio and television programmes ... falls outside the competence of the STC.
As regards the media, and radio and television in particular, there exists the instruction [implicit] in Article 40 § 1 of the Constitution that they be transformed into autonomous public institutions, freed of the tutelage of a specific government agency. For this reason the regulation of radio and television is entrusted ... to the NRTC, which is not a government agency.
Over recent years Bulgarian law has for the first time differentiated between the regimes for establishing telecommunications operators and those for establishing radio and television operators. The licensing of telecommunication operators is governed by the [Telecommunications Act 1998], whereas the licensing in respect of programme content is governed by the [Radio and Television Act 1998]. These are two differing types of activity: the first mainly monitors compliance with technological requirements under the [Telecommunications Act 1998], whereas the second monitors aesthetical and artistic qualities under the [Radio and Television Act 1998]. At the same time, the media law does not allow the independence of the procedure for issuing radio and television licences to be called into question, because section 115 of the [Radio and Television Act 1998] instructs the NRTC to make a reasoned decision on each application for a licence for electronic media broadcasting. If the NRTC's decision is to allow the application, it encloses the draft licence. The assertion ... that 'the STC is not bound by the decision of the NRTC [and that i]t may grant a licence or deny one irrespective of the positive decision of the NRTC' is unfounded. The [STC] has no right to review compliance with the criteria laid down in the [Radio and Television Act 1998]. All questions relating to the granting, modification, or withdrawal of radio and television broadcasting licences, respectively to guaranteeing freedom of expression through the media, fall within the mandate of the NRTC.
This court has many times ruled on the relations between the communications rights and the regulatory bodies in the information field. The connection between freedom of speech and the powers of the STC were examined in judgment no. 33 of 1998 [(решение № 33 от 8 декември 1998 г. по к.д. № 30 от 1998 г., обн., ДВ, брой 147 от 15 декември 1998 г.)], whose reasoning is also applicable in the instant case. This judgment states: 'As already found by [this court] in its judgment no. 7 of 1996 [(решение № 7 от 4 юни 1996 г. по к.д. № 1 от 1996 г., обн., ДВ , брой 55 от 28 юни 1996 г.)], State interference in the allocation of the radio frequency spectrum is inevitable. It follows that the freedom of the electronic media under Article 40 § 1 of the Constitution does not exclude State interference. The underlying principles of Article 40 § 1 may be complied with by making the licensing conditions and procedure public, accessible and preordained.'”
30. Under section 25(3) of the Telecommunications Act 1998, the decisions of the STC were subject to review by the Supreme Administrative Court.
31. Section 38 of the Radio and Television Act 1998, as worded at the material time, provided that the NRTC's decisions to grant, amend or withdraw a broadcasting licence were also subject to review by the Supreme Administrative Court.
32. Under section 41(3) of the Administrative Procedure Act 1979 (“Закон за административното производство”), which at the material time regulated, inter alia, the procedure for judicial review of administrative decisions, the reviewing court had to verify whether an administrative decision was lawful, that is, made by a competent body in due form, in compliance with the relevant procedural and substantive rules, and in conformity with the object and purpose of the law. Similarly, section 12 of the Supreme Administrative Court Act 1997 (“Закон за Върховния административен съд”), as in force at the relevant time, provided that the grounds for annulling administrative decisions were lack of competence of the body which had made the decision, its failure to make the decision in due form, a material breach of the rules of administrative procedure, a breach of the substantive law or nonconformity with the object and purpose of the law.
33. On 20 December 2000 the Committee of Ministers of the Council of Europe adopted Recommendation no. R (2000) 23 to Member States on the independence and functions of regulatory authorities for the broadcasting sector, in which it recommended that the Member States, inter alia, “include provisions in their legislation and measures in their policies entrusting the regulatory authorities for the broadcasting sector with powers which enable them to fulfil their missions, as prescribed by national law, in an effective, independent and transparent manner, in accordance with the guidelines set out in the appendix to this recommendation”.
34. The guidelines, featuring as an appendix to the recommendation, provide, as relevant:
“...
3. The rules governing regulatory authorities for the broadcasting sector, especially their membership, are a key element of their independence. Therefore, they should be defined so as to protect them against any interference, in particular by political forces or economic interests.
4. For this purpose, specific rules should be defined as regards incompatibilities in order to avoid that:
– regulatory authorities are under the influence of political power;
– members of regulatory authorities exercise functions or hold interests in enterprises or other organisations in the media or related sectors, which might lead to a conflict of interest in connection with membership of the regulatory authority.
5. Furthermore, rules should guarantee that the members of these authorities:
– are appointed in a democratic and transparent manner;
– may not receive any mandate or take any instructions from any person or body;
– do not make any statement or undertake any action which may prejudice the independence of their functions and do not take any advantage of them.
...
13. One of the essential tasks of regulatory authorities in the broadcasting sector is normally the granting of broadcasting licences. The basic conditions and criteria governing the granting and renewal of broadcasting licences should be clearly defined in the law.
14. The regulations governing the broadcasting licensing procedure should be clear and precise and should be applied in an open, transparent and impartial manner. The decisions made by the regulatory authorities in this context should be subject to adequate publicity.
...
27. All decisions taken and regulations adopted by the regulatory authorities should be:
– duly reasoned, in accordance with national law;
– open to review by the competent jurisdictions according to national law;
– made available to the public.”
VIOLATED_ARTICLES: 10
13