ITEMID: 001-99407
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF S.H. v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Violation of Art. 3 (in case of expulsion)
JUDGES: Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza
TEXT: 5. Bhutan is a remote kingdom in the Himalayas, which borders China and India. According to a census carried out in 2005, the current population is 682,321, of whom 35% are estimated to be ethnic Nepalese. The majority of ethnic Nepalese are Hindu, while the Drukpa, who account for 50% of the population, are predominantly Buddhist.
6. It is believed that the ethnic Nepalese (sometimes referred to as Lhotshampa”, meaning “southerners”) settled in southern Bhutan in the late 1800s and early 1900s. They were granted Bhutanese citizenship by the Citizenship Act of 1958. In 1988, however, a Government census led to the branding of many ethnic Nepalese as illegal immigrants. There were reports that many ethnic Nepalese who had previously been recognised as Bhutanese were forced to sign “voluntary migration certificates”, thereby forfeiting their citizenship under Bhutanese law. Local Lhotshampa leaders responded with anti-government rallies demanding citizenship and inciting attacks against government institutions. Between 1988 and 1993, more than 100,000 ethnic Nepalese fled to refugee camps in Nepal alleging ethnic and political repression.
7. Since 1907 Bhutan has been ruled by the Wangchuck hereditary monarchy. Although traditionally an absolute monarchy, in recent years the country has witnessed significant political reform. In March 2005 a draft of the country's first constitution was unveiled, which introduced major democratic reforms. Democratic elections for seats to the country's first parliament were completed in March 2008 and the King ratified the country's first constitution in July 2008.
8. The refugee population are housed mostly in UNHCR-funded camps in eastern Nepal. In 2008, after many years of failed bilateral talks between the Nepalese and Bhutanese Governments to repatriate the refugees, many opted for third-country re-settlement with the help of UNHCR and the International Organisation for Migration (“IOM”). More than 8,000 Bhutanese refugees have now been resettled. The United States of America has offered to resettle over 60,000 refugees from Bhutan over the next five years, and a number of other countries have volunteered to host a further 10,000. Bhutan, however, has not agreed to the repatriation of any of the refugees. Those who attempted to return to Bhutan illegally were returned to the refugee camps in Nepal by Indian border police. Some refugees managed to cross the border into Bhutan in order to stage protests, but all were eventually sent back.
9. Bhutan's transition to a constitutional democracy has not been an entirely smooth one. A wave of bombings rocked Bhutan in the run-up to the 2008 parliamentary elections, and security forces believed that a number of insurgent groups from among the Nepalese refugees were responsible.
10. The applicant was born in 1978 and lives in Huddersfield. He is a Bhutanese national who claims to be of Nepalese ethnic origin.
11. The applicant states that he was employed by the Bank of Bhutan as an office assistant on 3 January 2000. On 3 January 2001, he was asked to produce a security clearance certificate (SCC). He approached the domestic authorities for the SCC and was refused. He sought the SCC until December 2001 but was unable to obtain one.
12. The applicant further states that on 12 February 2002, when he attended his village annual census, he and his family were declared non-nationals and ordered to leave Bhutan immediately. When he refused to surrender his national identity card he was detained for three or four days.
13. The applicant states that he was dismissed from his job with the Bank of Bhutan on 7 May 2002 because he did not have the required SCC. When he went to Thimphu, the capital of Bhutan, to challenge this decision he was told to return to his village and obtain papers concerning his status. He was refused these papers and harassed at checkpoints on his journey as he did not have an identity card.
14. He states that he was arrested on 22 August 2002 for no reason and detained until 22 November 2002. During this period he alleges that he was beaten regularly with wooden sticks, kicked from behind while suspended upside down, and forced to undertake hard labour. There is no indication that he sustained any permanent scarring as a result. He was released after he had signed voluntary migration papers and was given an ultimatum to leave Bhutan within 48 hours. The applicant left Bhutan for India. He stayed there from 23 November 2002 until 31 December 2002, when he travelled to the United Kingdom. He was met on arrival by his sister and brother-in-law, who had been granted asylum in the United Kingdom in May 2001 and are now British citizens. The applicant's brother-in-law had been a human rights activist in Bhutan and had criticised the Government in the course of two interviews with the BBC World Service.
15. The date on which the applicant claimed asylum in the United Kingdom was disputed in the subsequent domestic proceedings. The applicant stated that he claimed asylum on 11 February 2003, while the Home Office maintained that it was on 20 May 2003.
16. On 21 July 2003 the Secretary of State for the Home Department refused the asylum claim. Although he accepted that southern Bhutanese of Nepalese origin were the subject of discrimination, he did not accept that the applicant was of Nepalese origin. He also did not accept that the bank would have allowed the applicant to work for two years without the required SCC. He noted that no evidence had been produced supporting the claim of arbitrary arrest or ill-treatment in detention. The applicant had left Bhutan through normal immigration channels on his own passport and the failure to seek leave to remain in India cast further doubt on his credibility.
17. The applicant appealed. The Special Adjudicator refused the appeal on 3 February 2004. He accepted that the applicant was ethnic Nepalese but held that that in itself was not sufficient to establish persecution. He did not accept the applicant had experienced the difficulties that he claimed. In particular, he noted that the applicant's visa application stated that he was working for the Ministry of Agriculture rather than the Bank of Bhutan, and contrary to his claim that he was detained between 22 August 2002 and 22 November 2002, his bank book showed wage payments from his employer up to November 2002. The Adjudicator further found that the applicant was not stateless: he had a valid Bhutanese passport and there was no evidence to indicate that he had been declared a non-national.
18. The applicant appealed to the Immigration Appeal Tribunal. The appeal was dismissed on 20 January 2005 as the Tribunal held that the Adjudicator had been entitled to find as he did on the evidence before him and that no error of law had been made. The Tribunal also found that the question of statelessness would be resolved practically as the Home Office would not remove someone unless his home country would accept that he was a national.
19. Permission for leave to appeal to the Court of Appeal was refused on 21 April 2005 on the ground that the Adjudicator had not made any error of law when he found that the applicant's evidence was unreliable and that he was not stateless.
20. On 25 July 2005 the applicant made further representations to the Secretary of State. He referred to a report by the chair of the Bhutanese Refugee Support Group in the United Kingdom which detailed the persecution of ethnic Nepalese in Bhutan and argued that he risked prosecution under the National Security Act 1992 for denigrating Bhutan by claiming asylum. He further argued that this risk would be increased by his association with his brother-in law. Finally, he submitted that his passport was not proof of Bhutanese nationality and that the Bhutanese authorities would consider that he had forfeited nationality by living outside Bhutan since 2002.
21. On 17 November 2005 the Secretary of State refused to consider the applicant's representations as amounting to a fresh asylum claim. The asylum claim had been treated in confidence and no documentation obtained from the Bhutanese authorities to effect the applicant's return to Bhutan would indicate that the applicant had applied for asylum. In respect of the applicant's brother-in-law, the Secretary of State noted that this claim had already been considered by the Immigration Appeal Tribunal. The remaining points in the applicant's representations were not significantly different from the material already considered and created no reasonable prospect of success.
22. On 13 February 2006 the Government of Bhutan issued a travel document for the applicant which was valid for one month and allowed him to travel from the United Kingdom to Bhutan. The Home Office attempted to remove him on 10 March 2006 but a High Court injunction prevented the removal as the applicant's legal processes were still outstanding. On 25 April 2006 the Government of Bhutan issued a second temporary travel document to the applicant, which was also valid for one month.
23. On 3 May 2006 further representations were made to the Secretary of State which, inter alia, stated that the applicant's parents had been expelled from Bhutan. On 8 May 2006, these representations were also rejected as not amounting to a fresh asylum claim since no evidence had been submitted in support of the applicant's submissions.
24. On 18 May 2006 an open letter from Amnesty International was made available which set out the organisation's concerns regarding the return of the applicant. It stated:
“This is the first case of its kind of which the organisation is aware that such a travel document has been issued. It is assumed that this unique travel document has been issued because of a request from the UK government. However, the very fact that [the applicant's] case has been highlighted in this way puts his safety at particular risk were he returned to Bhutan.”
25. Copies of email correspondence between the applicant's representatives and the Office of the United Nations High Commissioner for Refugees confirm that the latter made representations to the Home Office on the applicant's behalf in or around May 2006.
26. The applicant sought permission to apply for judicial review of the Secretary of State's decision of 18 May 2006. Permission was refused on 19 May 2006 as the application disclosed no arguable grounds for judicial review. The Deputy High Court judge also found that the applicant's submission that he would be at greater risk on account of the travel document had not been made out.
27. Permission to renew the application to the Court of Appeal was refused on 23 May 2006.
28. The same day, the applicant lodged an application before this Court. Removal directions for the same evening were then deferred. On 25 May 2006 the second travel document issued by the Government of Bhutan expired.
29. On 26 July 2007 fresh removal directions were set for 13 August 2007. On 9 August 2007 the President of the Chamber to which the application was allocated decided to apply Rule 39 of the Rules of Court and indicate to the Government of the United Kingdom that the applicant should not be expelled until further notice.
30. Appeals from decisions of the Secretary of State for the Home Department in asylum, immigration and nationality matters are now heard by the Asylum and Immigration Tribunal (“the AIT”), which replaces the former system of Adjudicators and the Immigration Appeal Tribunal (“the IAT”). Country guideline determinations of both the AIT and IAT are to be treated as an authoritative finding on the country guidance issue identified in the determination until expressly superseded or replaced by a later country guideline determination.
31. In the country guideline determination of DG (Risk – Nepalese) Bhutan CG [2003] UKIAT 00205, promulgated on 15 July 2003, the IAT accepted that persons of ethnic Nepalese origin were discriminated against in Bhutan but held that the discrimination did not amount to persecution. It did not, therefore, accept that the Nepalese minority were persecuted by reason of their Nepalese origins alone. Rather, each case had to be looked at on its own individual circumstances. In that particular case the claimant had argued that he was stateless, having been deprived of his citizenship by virtue of the Citizenship Act 1985. The IAT found, however, that if the claimant was permitted to re-enter Bhutan, he would likely be treated in the same way as any other member of the Nepalese minority. It was not satisfied that he would not be recognised as a citizen of Bhutan.
32. Council Directive 2004/83/EC of 29 April 2004 (on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted) has the objective, inter alia, of ensuring EU Member States apply common criteria for the identification of persons genuinely in need of international protection (recital six of the preamble). In addition to regulating refugee status, it makes provision for granting subsidiary protection status. Article 2(e) defines a person eligible for subsidiary protection status as someone who would face a real risk of suffering serious harm if returned to his or her country of origin. Serious harm is defined in Article 15 as consisting of: (a) death penalty or execution; (b) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; or (c) serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict. The Qualification Directive was transposed into domestic law by the Refugee or Person in Need of International Protection (Qualification) Regulations 2006.
IV. RELEVANT COUNTRY INFORMATION
General Country Information Reports
33. The Constitution was adopted on 18 July 2008. Country Information Reports pre-dating its adoption indicated that while the Government's human rights record was improving, the ethnic Nepalese minority were still subjected to discriminatory treatment. According to the United States State Department Report on Human Rights Practices in Bhutan, published on 11 March 2008, such treatment included the following: the requirement that all citizens wear the traditional dress of the ethnic majority; the prohibition of political parties organized by ethnic Nepalese citizens; the requirement that ethnic Nepalese meet very strict criteria to be considered “genuine” Bhutanese and obtain citizenship and security clearances in the form of Non-Objection Certificates; and the requirement in southern Bhutan for ethnic Nepalese to perform a disproportionate amount of compulsory labour.
34. A report published by Freedom House on 2 July 2008 and entitled “Freedom in the World 2008 – Bhutan” further stated that while the Government had made substantial progress on political reform over the past few years, the ethnic Nepalese continued to face discrimination. The report indicated that:
“Conditions for Nepali speakers in Bhutan have improved somewhat, but several major problems remain. According to a 2007 Human Rights Watch report, ethnic Nepalis must obtain certificates verifying that they do not present a threat to the state in order to enter schools, receive health care, take government jobs, or travel within Bhutan or abroad. Schools in the south restrict even those Nepali speakers with certificates.”
35. For the ethnic Nepalese who remained in Bhutan, concerns related predominantly to the risk that those who could not obtain Non-Objection Certificates would be unable to access employment and healthcare and in some cases would be declared non-nationals. On 1 February 2008 Human Rights Watch published a report entitled “Bhutan's Ethnic Cleansing”, which reported that:
“A Bhutanese government census in 2005 classified 13 percent of Bhutan's current population as 'non-nationals', meaning that they are not only ineligible to vote, but are denied a wide range of other rights. An ethnic Nepali non-national living in Bhutan told Human Rights Watch, 'they don't ask me to leave, but they make me so miserable, I will be forced to leave. I have no identification, so I cannot do anything, go anywhere, get a job.'”
36. The 2008 US State Department report further recorded that:
“The government restricted emigration and prohibited the return of citizens who left the country. The country's citizenship laws state that persons who have left the country of their own accord, without the knowledge or permission of the government, or whose names are not recorded in the citizenship register maintained in the Ministry of Home Affairs (MHA), would not be considered citizens of the country. Some dissidents and human rights groups claimed that the law was created specifically to deny citizenship to ethnic-Nepalese Bhutanese. Human rights groups also allege that some ethnic Nepalese with relatives in the camps faced insurmountable bureaucratic challenges and were denied IDs for procedural reasons. As a result, these individuals were unable to participate in the election process.”
37. The first stage in Bhutan's transition to a constitutional democracy was the election of 47 candidates to the National Assembly. The March 2008 elections were monitored by the European Union Election Observation Mission, which published its final report on 21 May 2008. While the mission expressed concern that during the campaign period candidates were prevented from discussing citizenship and security clearance issues, it concluded that:
“The election of nine ethnic Nepali (Lhotshampa) candidates was a positive sign for an inclusive National Assembly that can address issues of concern for the country's minority citizens.”
38. The Constitution was adopted on 18 July 2008. Article 7 grants all persons the right to life, liberty and security of persons; the right not to be deprived of property except for a public purpose and on payment of fair compensation; the right to equality before the law and to equal and effective protection of the law without discrimination on grounds of race, sex, language, religion, politics or any other status; the right not to be compelled to belong to another faith by means of coercion or inducement; the right not to be subjected to torture or to cruel, inhuman or degrading treatment or punishment; the right not to be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence; the right not to be subjected to capital punishment; the right not to be subjected to arbitrary arrest or detention; and the right to initiate legal proceedings to enforce these rights. Further rights and freedoms are guaranteed only to Bhutanese citizens. These include the right to freedom of speech; the right to freedom of thought, conscience and religion; the right to vote; and the right to freedom of movement.
39. However, the Constitution further provides that notwithstanding the rights conferred by it, nothing in Article 7 shall prevent the State from imposing reasonable restrictions by law when it concerns the interests of the sovereignty, security, unity and integrity of Bhutan; the interests of peace, stability and well-being of the nation; the interests of friendly relations with foreign States; the incitement to an offence on the grounds of race, sex, language, religion or region; the disclosure of information received in regard to the affairs of the State or in discharge of official duties; or the rights and freedom of others.
40. Citizenship of Bhutan is governed by Article 6 of the Constitution, which provides as follows:
Article 6
Citizenship
A person, both of whose parents are citizens of Bhutan, shall be a natural born citizen of Bhutan.
A person, domiciled in Bhutan on or before the Thirty-First of December Nineteen Hundred and Fifty Eight and whose name is registered in the official record of the Government of Bhutan shall be a citizen of Bhutan by registration.
A person who applies for citizenship by naturalization shall:
Have lawfully resided in Bhutan for at least fifteen years;
Not have any record of imprisonment for criminal offences within the country or outside;
Be able to speak and write Dzongkha;
Have a good knowledge of the culture, customs, traditions and history of Bhutan;
Have no record of having spoken or acted against the Tsawa-sum;
Renounce the citizenship, if any, of a foreign State on being conferred Bhutanese citizenship; and
Take a solemn Oath of Allegiance to the Constitution as may be prescribed.
The grant of citizenship by naturalization shall take effect by a Royal Kasho of the Druk Gyalpo.
If any citizen of Bhutan acquires the citizenship of a foreign State, his or her citizenship of Bhutan shall be terminated.
Subject to the provisions of this Article and the Citizenship Acts, Parliament shall, by law, regulate all other matters relating to citizenship.
41. The United States State Department Report on Human Rights Practices in Bhutan, published on 25 February 2009, indicated that:
“The transition to a parliamentary democracy helped the human rights situation to improve considerably; however, there were continued difficulties with the regulation of religion, and some discrimination against the ethnic Nepalese minority.”
42. The same report, under the heading 'Freedom of Assembly', stated that:
“The constitution provides for the right to freedom of peaceful assembly and freedom of association, with the caveat that membership to associations that are "harmful to the peace and unity of the country" are excluded. In January 2007, according to SAHRDC, a group of ethnic Nepalese staged a protest in Phuntsholing as part of their continuing effort to pressure the government to resolve the Bhutanese refugee problem in Nepal. Police arrested the demonstrators and handed them to the Jaigaon police of West Bengal in India.”
43. Under the heading 'Freedom of Association', the report continued as follows:
“The law provided for freedom of association, and the government permitted the registration of some political parties and organizations. However, the government did not permit political parties organized by ethnic Nepalese citizens.”
44. Under the heading 'Freedom of Movement, Internally Displaced Persons, Protection of Refugees, and Stateless Persons', the report added:
“The law does not address forced exile. Although the government officially does not use formal exile, there were over 100,000 ethnic Nepalese Bhutanese living in refugee camps in Nepal and India after a government campaign in the 1980s forced them out of the country. While the government has agreed, in principle, to accept many into the country, they have declined requests to visit the refugee camps. In previous years many political dissidents freed under government amnesty stated they were released on the condition that they depart the country. The government denied this assertion. Many of those released subsequently registered at refugee camps in Nepal, while some relocated to India.
The government restricted emigration and prohibited the return of citizens who left the country. The country's citizenship laws state that persons who have left the country of their own accord, without the knowledge or permission of the government, or whose names are not recorded in the citizenship register maintained in the Ministry of Home Affairs (MHA), would not be considered citizens of the country. Some dissidents and human rights groups claimed that the government wrote the law specifically to deny citizenship to ethnic-Nepalese Bhutanese. Human rights groups also alleged that some ethnic Nepalese with relatives in the camps faced insurmountable bureaucratic challenges and were denied identification cards for procedural reasons. As a result, these individuals were unable to participate in the election process.”
45. The Asian Centre for Human Rights was even more critical of the regime. In its “South Asia Human Rights Index – 2008” it reported that:
“Despite the introduction of the first ever Draft Constitution providing limited two-party democracy..., Bhutan essentially remains a repressive regime run by the Royal family. Bhutan officially discriminates against the minorities. A landlocked and closed country, little information on the human rights violations was available.”
46. It further notes that:
“The draft constitution does not provide any safeguard to preserve, protect and promote the arts, custom, knowledge and culture of the minorities. It has maintained deadly silence on providing any affirmative action programme for minorities.”
47. Finally, the Association of Press Freedom Activists – Bhutan indicated, in a report entitled “Torrefy of Democratic Values – commenting on budding democracy in Bhutan”, that while the Constitution appeared to promise improvements, those living in the southern parts of Bhutan still met with discrimination.
48. The applicant submitted a number of expert reports prepared for the purposes of the domestic proceedings which considered the specific risk to him on return. In a report prepared on 23 September 2006, Michael Hutt, a Professor of Nepali and Himalayan Studies at the School of Oriental and Asian Studies (SOAS) at the University of London, indicated:
“It is difficult to predict precisely what would happen to [the applicant] were he to be returned to Bhutan. I myself am not aware of any such case to date. The fact that the government of Bhutan is willing to facilitate his return to Bhutan by issuing a travel document should not be taken as an indication that he would be able to resume anything resembling his former life in that country, or even be able to remain in the country for very long.
[... ... ...]
Bhutan is small, thinly populated and bureaucratically centralized, and anonymity would be impossible. Wherever he went it would be widely and generally known that he was a returned asylum seeker and anti-national. Even those Lhotshampas who never left Bhutan face discrimination in the fields of employment, education, freedom of movement, and citizenship ... It is extremely difficult to imagine any meaningful rights or any real security being granted to an individual who left the country without permission, thereby forfeiting his citizenship, and subsequently spoke ill of the king's and the government's record on human rights, thereby committing treason.”
49. In two statements dated 14 July 2005 and 18 May 2006, Amnesty International indicated that it did not consider it safe to return the applicant to Bhutan. In particular, Amnesty International had concerns about the sustained and cumulative discrimination against southern Bhutanese which could amount to persecution and severe risk to the right to life. In addition, it was concerned that those who sought asylum in other countries and raised issues about human rights abuses in Bhutan while out of the country could face prosecution under the National Security Act. In the second report, Amnesty International raised an additional concern: namely, that the travel document issued to the applicant was the first of its kind, and it questioned why the Government would issue such a document when it had consistently denied the right to return of over 100,000 southern Bhutanese evicted in the early 1990s.
50. In a report dated 13 February 2004, Human Rights Watch stated that it did not believe that the physical, legal or material security of the applicant could be guaranteed on return to Bhutan. The report noted that ethnic Nepalese faced ongoing and severe discrimination in all aspects of daily life in Bhutan, and there was reason to believe that those whose relatives had left Bhutan would be particularly targeted. On 14 February 2005 a letter from the Human Rights Council of Bhutan confirmed that a person who talked against King, country and Government was a “non-national” and committed an offence under the National Security Act 1992 which was punishable by life imprisonment.
51. In a letter dated 1 January 2005 UNHCR emphasised that it had not been granted access to the areas of potential return in Bhutan, and as it would be impossible to monitor any returns process, it did not promote returns.
52. The applicant also submitted five reports by Rachel Carnegie, Co-ordinator of the Bhutanese Refugee Support Group (UK). The initial report is dated 17 November 2003, and the follow-up reports are dated 15 December 2004, 7 July 2005, 9 October 2006 and 28 September 2009. In her report of 9 October 2006, Ms Carnegie noted that those southern Bhutanese who had remained in Bhutan continued to suffer severe and sustained discrimination, amounting to persecution. In particular, she stated that since 1991 access to government services, such as education, healthcare, and employment in public services, had all been dependent on producing a “Non-Objection Certificate”, a security clearance certificate from the police which confirmed that they had not spoken or acted against the King or Government, and did not have any relatives who had done so.
53. Ms Carnegie further stated, at paragraph 23, that:
“The situation of those southern Bhutanese remaining within Bhutan remains very insecure. Their citizenship status has been eroded in successive census exercises throughout the 1990s and into this decade. The nationwide census held in June 2005 and published in 2006 show that of a total population of 634,972, 552,996 are Bhutanese citizens, whilst the remaining 81,976 are said to be foreign nationals. There are growing concerns that this latter category, appearing for the first time in Bhutan's population figures, may represent an effective 'de-nationalisation' of many southern Bhutanese remaining within Bhutan. The Bhutanese Home Ministry is currently issuing new citizenship identity cards to Bhutanese nationals, and there are serious concerns that a large proportion of the southern Bhutanese will be excluded from this process. Without such cards, they will be denied the right to vote and to enjoy by law the rights guaranteed by the new Constitution.”
54. With regard to the applicant's situation, Rachel Carnegie stated that the travel documents issued by the Bhutanese government offered no guarantee that his nationality rights and other rights would be recognised on his return. It was not possible to determine exactly what the applicant's fate would be, in the absence of a known precedent, but it was reasonable to conclude that he would be at significant risk as a failed asylum seeker for whom the Home Office had twice applied for travel documents.
55. Finally, Ms Carnegie considered the risk to the applicant under the 1992 National Security Act. She concluded that were the applicant returned to Bhutan, he would face imprisonment, torture or inhuman or degrading treatment or punishment under the Bhutanese National Security Act of 1992, which stated that whoever engaged or attempted to engage in treasonable acts against King, people or country, either within or outside Bhutan, should be punished with death or life imprisonment. Moreover, according to the Act, whoever creates or attempts to create misunderstanding or hostility between the Government and the people of Bhutan and people of any foreign countries with which Bhutan has peaceful and friendly relations shall be punished with imprisonment which may extend to five years.
56. In her final report, dated 28 September 2009, Ms Carnegie was specifically asked to address the question of whether there had been any change in the treatment of the ethnic Nepalese in Bhutan following the adoption of the Constitution. In her opinion, she stated that there had been no significant change following the adoption of the Constitution. Moreover, she believed that the clear distinction made in the Constitution between rights afforded to “all persons” and rights afforded to “citizens” gave permission for the marginalisation and exclusion of non-citizens from the mainstream of society.
57. Finally, she referred to a 2008 report by the Norwegian Refugee Council entitled “Bhutan: Land of Happiness for the Selected”, in which the Council indicated that Lhotshampas still living in Bhutan continued to face discrimination amounting to breaches of their civil and political rights as well as their social, economic and cultural rights. Consequently, the Council did not believe that it was safe to return Lhotshampas to Bhutan as the State could not guarantee their physical, legal and material security.
VIOLATED_ARTICLES: 3


ITEMID: 001-71633
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF VERKEYENKO v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13;Remainder inadmissible;Pecuniary and non-pecuniary damage, costs and expenses - financial award
JUDGES: Zoryana Bortnovska
TEXT: 4. The applicant was born in 1936 and currently resides in Odessa. He is a former employee of the State Company “Chornomorske Morske Paroplavstvo” (the “CMP”).
5. In 1997 the applicant instituted proceedings against the CMP in the Zhovtnevy District Court of Odessa, seeking the recovery of salary arrears.
6. On 6 October 1998 the Zhovtnevy District Court of Odessa ordered the CMP to pay the applicant UAH 3,604 in compensation. The decision was not appealed and became final on 16 October 1998.
7. On 18 December 2000 the Ministry of Justice informed the applicant that the judgment in his favour could not be immediately executed due to the CMP’s lack of funds. In particular, it noted that the CMP’s debts amounted to UAH 20,095,905, including salary arrears in the amount of UAH 5,067,027. They also stated that they were in the course of selling some of the CMP’s property and vessels belonging to it.
8. On 28 May 2001 the Zhovtnevy District Prosecutor’s Office informed the applicant that the Bailiffs’ Service had frozen the CMP’s bank accounts, however they had been empty since 1997.
9. On 26 December 2002 the applicant informed the Court that the judgment had been executed when, on 18 December 2002, he had been paid UAH 3,604.
10. The relevant domestic law is set out in the judgment of 27 July 2004 in the case of Romashov v. Ukraine (no. 67534/01, §§ 16-19).
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-61263
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF KARNER v. AUSTRIA
IMPORTANCE: 1
CONCLUSION: Government's request to strike out refused;Violation of Art. 14+8;Costs and expenses partial award
JUDGES: Christos Rozakis
TEXT: 10. The applicant was born in 1955 and lived in Vienna.
11. From 1989 the applicant lived with Mr W., with whom he had a homosexual relationship, in a flat in Vienna, which the latter had rented a year earlier. They shared the expenses on the flat.
12. In 1991 Mr W. discovered that he was infected with the Aids virus. His relationship with the applicant continued. In 1993, when Mr W. developed Aids, the applicant nursed him. In 1994 Mr W. died after designating the applicant as his heir.
13. In 1995 the landlord of the flat brought proceedings against the applicant for termination of the tenancy. On 6 January 1996 the Favoriten District Court (Bezirksgericht) dismissed the action. It considered that section 14(3) of the Rent Act (Mietrechtsgesetz), which provided that family members had a right to succeed to a tenancy, was also applicable to a homosexual relationship.
14. On 30 April 1996 the Vienna Regional Civil Court (Landesgericht für Zivilrechtssachen) dismissed the landlord's appeal. It found that section 14(3) of the Rent Act was intended to protect persons who had lived together for a long time without being married against sudden homelessness. It applied to homosexuals as well as to persons of opposite sex.
15. On 5 December 1996 the Supreme Court (Oberster Gerichtshof) granted the landlord's appeal, quashed the lower court's decision and terminated the lease. It found that the notion of “life companion” (Lebensgefährte) in section 14(3) of the Rent Act was to be interpreted as at the time it was enacted, and the legislature's intention in 1974 was not to include persons of the same sex.
16. On 26 September 2000 the applicant died.
17. On 11 November 2001 the applicant's lawyer informed the Court of the applicant's death and that his mother had waived her right to succeed to the estate. He asked the Court not to strike the application out of its list before the public notary handling the applicant's estate had traced other heirs.
18. On 10 April 2002 the applicant's lawyer informed the Court that the public notary had instigated enquiries in order to trace previously unknown heirs who might wish to succeed to the estate.
19. Section 14 of the Rent Act (Mietrechtsgesetz) reads as follows:
“Right to a tenancy in the event of death
(1) The death of the landlord or a tenant shall not terminate a tenancy.
(2) On the death of the main tenant of a flat, the persons designated in subsection (3) as being entitled to succeed to the tenancy shall do so, to the exclusion of other persons entitled to succeed to the estate, unless they have notified the landlord within fourteen days of the main tenant's death that they do not wish to continue the tenancy. On succeeding to the tenancy, the new tenants shall assume liability for the rent and any obligations that arose during the tenancy of the deceased main tenant. If more than one person is entitled to succeed, they shall succeed jointly to the tenancy and become jointly and severally liable.
(3) The following shall be entitled to succeed to the tenancy for the purposes of subsection (2): a spouse, a life companion, relatives in the direct line including adopted children, and siblings of the former tenant, in so far as such persons have a pressing need for accommodation and have already lived in the accommodation with the tenant as members of the same household. For the purposes of this provision, 'life companion' shall mean a person who has lived in the flat with the former tenant until the latter's death for at least three years, sharing a household on an economic footing like that of a marriage; a life companion shall be deemed to have lived in the flat for three years if he or she moved into the flat together with the former tenant at the outset.”
VIOLATED_ARTICLES: 14
8


ITEMID: 001-70188
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: CLARKE v. THE UNITED KINGDOM
IMPORTANCE: 1
CONCLUSION: Inadmissible
JUDGES: Josep Casadevall;Nicolas Bratza
TEXT: The applicant, Mr John Clarke, is a British national who was born in 1950 and lives in Bristol. The respondent Government were represented by Mr Derek Walton, of the Foreign and Commonwealth Office, London.
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1997 the applicant sued a local authority and an insurance company (“the Zurich”) in respect of damage caused to property which the applicant had leased from the local authority. He claimed that the authority had failed to look after the property and the surrounding area, and that the insurance company had failed to pay on a policy which covered the damage. The applicant’s claims, initially for £29,026, were revised at trial to a total of £71,000. On 31 July 1997, the Zurich made a payment into court of £3,000. The court offices of the Portsmouth and Newcastle-upon-Tyne County Courts forwarded form N243 to the applicant to inform him of the payment in. The forms, which provided for a number of options, had not been filled in. The Newcastle-upon-Tyne County Court gave judgment against the applicant in two judgments of 13 and 14 May 1999. Costs were ordered against the applicant, and leave to appeal was refused. Lord Justice Thorpe refused permission to appeal to the Court of Appeal on 7 April 2000, and he further refused permission to appeal to the House of Lords on 5 May 2000.
On 15 November 2000, the Zurich made a statutory demand in respect of the costs awarded against the applicant in the original action. The demand was not met, and on 8 December 2000 a bankruptcy petition was served. The applicant was adjudicated bankrupt on 31 January 2001. An appeal against the bankruptcy order was dismissed on 8 March 2001, and on 9 November 2001 the applicant applied, out of time, for permission to appeal. The application was refused by Lord Justice Chadwick and Sir Swinton Thomas on 9 May 2002 on the ground that the bankruptcy order was made in respect of an unchallengeable judgment debt as to which there was no counter-claim. At the same time, Lord Justice Chadwick gave directions that the three matters involving the applicant and then pending before the Court of Appeal (see below) were to be heard together before 24 June 2002.
On 20 November 2002, at the renewed public examination of the applicant, the applicant was committed to prison for two months for failure to comply with the reasonable requests of the trustee in bankruptcy. He had previously been imprisoned on a warrant for his arrest after he had failed to attend a hearing, and he had also been imprisoned for two weeks for failing to co-operate with the trustee.
The bankruptcy proceedings revealed a number of incidents in which the applicant failed to comply with various obligations. He did not attend appointments at the Official Receiver’s office on 8 February, 16 March, 30 May and 13 June 2001. He also failed to attend for his public examination, as a result of which he was arrested and held in custody between 23 April and 2 May 2002. Thereafter, he failed to provide the Official Receiver with a statement of affairs, as required by the bankruptcy legislation, and he refused to attend the Official Receiver to answer questions. After the dismissal of his appeal against the bankruptcy order on 9 May 2002, the applicant’s public examination was resumed before Mr Justice Neuberger on 8 November 2002. The applicant again refused to answer questions and, after an adjournment to allow him more time to comply, the applicant was sentenced to two months in prison on 20 November 2002.
After the judgment of 14 May 1999 in the initial action, the applicant brought three further sets of proceedings, against the Lord Chancellor’s Department (sued as the Portsmouth County Court) in respect of the information contained in Form N243, against the Zurich which, he claimed, had misled him into not accepting the payment into court, and against the Zurich’s barrister who, he claimed, had misled him into thinking that he could not withdraw the payment into court at the beginning of the action on 10 May 1999.
In the proceedings against the Lord Chancellor’s Department, the applicant’s claim was issued on 11 November 1999 and re-issued on 14 January 2000. On 22 June 2000 District Judge Daniel in the Bristol County Court noted that Form N243 stated that:
“if the defendant does wish to accept the payment in he should do so in writing within 21 days. It then proceeds to give other events and times in brackets. The form, in this respect, is most unsatisfactory and is made worse because none of the various bracketed events are deleted. Indeed, I would not expect the average court clerk to have sufficient knowledge of the rules to know how to complete this part of the form and I imagine that in most cases all options were left open.”
The claim was nevertheless dismissed on the ground that it had no real prospect of success, as the applicant could not establish that the one error on the form had caused his losses. Leave to appeal was granted by the trial judge, and the appeal was dismissed by His Honour Judge Rutherford QC (a circuit judge) in the Bristol County Court on 10 August 2000. Judge Rutherford summarised the claim as being that the court office had been negligent in that it issued a form that was ambiguous and to a certain extent incorrect, as a result of which the applicant did not accept the payment into court, lost the proceedings, and was ordered to pay costs of £25,000. The judge accepted that the Lord Chancellor’s Department owed the applicant a duty of care and that the duty had been breached. He did not, however, accept that the applicant had acted to his detriment as a result of the breach: on the applicant’s own account, he had not accepted the payment into court before the hearing because he relied on a statement of the Zurich’s barrister. The applicant applied for leave to appeal by a series of notices. One of the applicant’s points on appeal concerned the issue of the participation of the district and circuit judges who sat as single judges in the case. He underlined that they had been recommended for appointment, and were governed and could be dismissed by the Lord Chancellor, who was the defendant in the proceedings. Lord Justice Brooke, determining the application for permission to have a second appeal, granted permission on 13 December 2000, principally on the “point of constitutional importance” concerning the position of circuit and district judges in cases against the Lord Chancellor or his department. Leave to appeal was also granted on a number of subsidiary points.
The appeal before the Court of Appeal was to have been heard on 5 November 2001, the Treasury Solicitor had appointed counsel, and an amicus curiae had been appointed. Shortly before the hearing, the Court of Appeal office learned that the applicant had been adjudicated bankrupt on 31 January 2001, and the hearing was adjourned to establish the effect of the bankruptcy on the proceedings. The Official Receiver took the view that the causes of action had vested in him, and that he had no funds to pursue them. He added, in a letter of 28 February 2002, that he was prepared to consider a request to assign the causes of action to the applicant, but in the absence of co-operation from the applicant, was unwilling to do so.
The claim in the second action against the Zurich, in respect of alleged negligent misstatement by the Zurich’s representatives during the trial of the initial action, was struck out by a district judge on 22 August 2000. Permission to appeal was refused on 16 November 2000 by a circuit judge. No appeal lay against that refusal by virtue of Section 54(4) of the Access to Justice Act 1999. The applicant’s request for a further appeal was discussed in the Court of Appeal on 13 December 2000, when Lord Justice Brooke directed that the request be put before him to determine what direction to give. On receiving the papers, it became apparent that no appeal lay, and Lord Justice Brooke so directed. The applicant was informed on 28 March 2001 and requested an oral hearing. On 31 March 2001 Lord Justice Brooke directed that the hearing should be held together with the hearing in the action against the Lord Chancellor’s Department.
The action against the Zurich’s barrister was dismissed on 13 December 2000, and the applicant applied for permission to appeal. The application was dealt with by Lord Justice Brooke on 31 March 2001, when he directed that the application should be listed with the action against the Lord Chancellor’s Department.
On 30 May 2002, pursuant to the directions given on 9 May 2002 in the bankruptcy appeal, Lord Justice Chadwick considered the outstanding issues in relation to the three sets of proceedings before him (those at point 3 above). He outlined the history of the case, and noted the two important points which were raised. The first point was whether the district and county court judges were sufficiently independent of the Lord Chancellor, having regard to the terms of their appointments, to avoid a perception of bias or a violation of Article 6 of the Convention. The second point was whether Section 54 (4) of the Access to Justice Act 1999 was compatible with the Human Rights Act 1998.
Lord Justice Chadwick found that all three actions had vested in the Official Receiver on the applicant’s bankruptcy. He did not accept the applicant’s claim that where matters of great public importance had been identified, they should always be pursued. He insisted that it was always necessary for someone to be able and willing to pursue them. He noted specifically the applicant’s history of non-cooperation with the Official Receiver.
The appeal in the action against the Lord Chancellor’s Department was struck out, and the applications in the other two actions were also struck out. The orders were made on the grounds “that the person in whom the causes of action are vested does not wish to pursue that appeal and those applications; and that [the applicant], who does wish to pursue them, has no standing in those proceedings to do so”. Lord Justice Chadwick also directed that the applicant “on providing to this court a copy of an assignment of the causes of action by the trustee in bankruptcy to him, may apply in writing to this court, within three months of today, to reinstate the appeal and the applications. ... [I]t seems to me correct, in view of [the applicant’s] strong sense of grievance ... to leave open the possibility that, if such an assignment were made in his favour, he should be able to restore the appeal in this court. The period of three months may, itself, be extended on a written application to this court, with a copy to the Official Receiver, setting out the circumstances which suggest that any extension of the period would be likely to serve any purpose.”
On 31 May 2002 the Official Receiver asked the applicant for copies of requests for assignment of the action which the applicant had claimed had been made. He also asked for the applicant’s proposals as to an assignment, and added that on receiving them he would consult his solicitors and seek their advice. He noted that he would have to be put in funds, as there were no funds in the estate and no assets of which he was aware which could be used to provide funds.
On 7 June 2002, in reply to two letters of 6 June 2002 from the applicant, the Official Receiver responded in the following terms:
“As requested, I confirm that it is not my intention to pursue these matters further. I do not have access to public funds as Official Receiver, other than in the most limited of capacities, and as you will know ... it is not the view of the Insolvency Service that the matter should be taken forward ...I must also point out, that your failure to co-operate in these proceedings does nothing to advance your arguments, as you seem to be of the opinion that any decision that I take should be made in a vacuum.. . I am of the view that you have not co-operated in any substantive way whatsoever to date...
As far as I am concerned, on no occasion have you made a formal request for the assignment to you of the ... action. ... I should be grateful if you would now forward a copy of the letters to which you refer. The absence of those letters suggests to me that no such letters were ever written by you ... If you wish the matter to proceed, please let me have your remittance for [£1,000 plus VAT for solicitors’ costs], and I will instruct them to consider the matter, and advise me ...”
The applicant states that the Official Receiver sought his further committal to prison for failure to answer questions but that the application was refused on 12 June 2003.
The following is an extract from the skeleton argument of the amicus curiae appointed for the hearing which was to be held before the Court of Appeal on 5 November 2001 (see above):
“Appointment
25) Circuit judges are appointed by the Queen on the recommendation of the Lord Chancellor (see Courts Act 1971 section 16).
26) There is a significant judicial input into the selection of circuit and district judges. The selection process for both District and Circuit Judges involves confidential “soundings” from judges and members of the legal profession, which are not disclosed to candidates (...). More importantly, the selection of candidates for interview is made by a panel which comprises a sitting Circuit Judge, a civil servant and a lay person (...).
27) That said, the final decision as to whom to recommend to the Queen for appointment lies with the Lord Chancellor alone (...). The Lord Chancellor’s recommendation is a necessary condition for appointment (Courts Act 1971 section 16).
28) The arrangements for the appointment of a District Judge are similar (...) save that the appointment of District Judges is made by the Lord Chancellor himself pursuant to section 6 of the County Court Act 1984 ....
29) The personal qualities sought in candidates for the posts of District and Circuit Judge include “integrity and independence” which is said to include “independence of mind and moral courage” and “fairness and impartiality” (...).
Pay
30) The salaries of both District and Circuit Judges are, by statute, set at the discretion of the Lord Chancellor, acting with the concurrence of the Treasury (District Judges) or the consent of the Minister for the Civil Service (Circuit Judges).
31) In the case of District Judges, section 6(1) of the County Court Act 1984 provides:
“Subject to the provisions of this section, there shall be a district judge for each district, who shall be appointed by the Lord Chancellor and paid such salary as the Lord Chancellor may, with the concurrence of the Treasury, direct.”
32) In the case of Circuit Judges, section 18(1) of the Courts Act 1971 provides:
“Subject to Part II of Schedule 2 to this Act, there shall be paid to each Circuit judge such salary as may be determined by the Lord Chancellor with the consent of the Minister for the Civil Service.”
33) Section 18(2) provides, inter alia, that salary shall be payable at such intervals, not exceeding three months, as the Treasury may determine (s. 18(2)c) and that such salary may be increased, but not reduced, by a further determination under section 18 (s. 18(2)(d)).
34) Mr Staff [a civil servant from the Lord Chancellor’s Department who gave evidence in the case] explains that “in practice” judicial salaries are now settled annually “in the light of recommendations made to the Government by the Senior Salaries Review Body”. It does not appear, however, that this Body has any statutory underpinning. Its recommendations are not binding on the Lord Chancellor or the Executive.
Oath
35) As Mr Staff points out (witness statement §§ 13 and 34) both District and Circuit Judges are required to take the oath of allegiance and the judicial oath (see Courts and Legal Services Act 1990 section 76(1), Courts Act 1971 section 22(1)).
Removal
36) District Judges may be removed from office by the Lord Chancellor pursuant to section 11(4)-(6) of the County Courts Act 1984 which provide:
“(4) A person appointed to an office to which subsection (1) applies shall hold that office during good behaviour.
(5) The power to remove such a person from his office on account of misbehaviour shall be exercisable by the Lord Chancellor.
(6) The Lord Chancellor may also remove such a person from his office on account of inability to perform the duties of his office.”
37) Circuit Judges may be removed from office by the Lord Chancellor pursuant to section 17 of the Courts Act 1971. That provides:
“The Lord Chancellor may, if he thinks fit, remove a Circuit judge from office on the ground of incapacity or misbehaviour.”
....
84) It is submitted that the most troubling aspect in this case, from an Article 6 point of view, is the limited judicial role in supervising the exercise of the Lord Chancellor’s statutory power to remove county court judges.
....
95) It does not necessarily follow that the present arrangements are not Article 6 compliant. On the face of it, the passages from Clancy (§§ 49 and 50 above), Spear (§ 55) and Campbell and Fell (§ 56) are of significant assistance to the Respondent in the present case. Spear (a recent case presided over by Laws LJ ...) is of particular assistance to the Respondent, albeit that it is not a decision of the Court of Appeal. It is right to note, however, that the passage quote above from Campbell and Fell has been construed narrowly by the Court of Session. See, in particular, the illuminating discussion of this passage by Lord Reed at page 236 of Starrs.
96) The Respondent’s best defence to the Appellant’s best point on Article 6 is that, in practice, removal almost never occurs and when it does it poses no threat to the independence and impartiality of the judiciary.
97) It is submitted that some caution is needed when seeking to place weight on the absence of many actual cases of removal of County Court judges ... in support of a conclusion as to their independence and impartiality in Convention terms. In theory, the need never to invoke the power to dismiss is just as consistent with a judiciary wholly bent to the will of the Lord Chancellor as it is with a fully independent and impartial judiciary with which no Lord Chancellor dares to interfere.
98) It is not, however, suggested that the former is the case. Indeed, to hold such a view might well cogently be said to display just the sort of “neurotic distrust” which the Court cautioned against in Spear.
....
102) It is submitted that the answer to the question of whether the county court judges in the present case were not Article 6 compliant is not obvious. The case is more borderline than Findlay, Starrs or Scanfuture in one direction and than Spear and Clancy in the other.
103) On balance, it is respectfully submitted that the combination of
a) the apparent long tradition of invoking the removal power in only the most unusual circumstances, and
b) the availability of a relatively intense judicial review is sufficient to render the present system Article 6 compliant, albeit, as emphasized above, a more obviously Article 6 compliant regime is available and desirable.”


ITEMID: 001-75670
LANGUAGEISOCODE: ENG
RESPONDENT: EST
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: BOLKVADZE v. ESTONIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Peer Lorenzen
TEXT: The applicant, Mr Temura Bolkvadze, is a Russian national, who was born in 1969 and lives in Tallinn. The respondent Government are represented by Ms M. Hion, Director of the Human Rights Division of the Legal Department of the Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant and Y.N., his wife, jointly owned an apartment which was registered in the wife’s name. On 7 June 1996 Y.N. concluded a pledge agreement in favour of an insurance company, AS Blig, by which her sister’s loan of 60,000 Estonian kroons (EEK) (3,834 euros (EUR)) was secured by the apartment. According to the pledge agreement Y.N. confirmed that she was single and that no third parties had claims to the apartment. The agreement was drafted by a notary in Estonian. It was confirmed in the agreement that its text had been translated by the notary from Estonian into Russian prior to it being signed by the parties. It was also confirmed that the text of the agreement had been read to the parties and that it had complied with their will.
According to the applicant, the content of the agreement had not been translated for Y.N. who was of Russian origin and did not understand Estonian. The notary had only shown her the space for her signature. It had not been explained to her that without her husband’s consent she was not entitled to conclude the pledge agreement.
As M.S., Y.N.’s sister, failed to repay the loan, an insurance company AB Elukindlustuse AS, the legal successor of AS Blig, lodged an action against her and Y.N. According to the company, the debt was EEK 216,407 (EUR 13,828) by that time, consisting of the original loan, interest and default interest. The insurance company’s claim lodged with the Tallinn City Court (Tallinna Linnakohus) was for EEK 160,000 (EUR 10,224). The defendants, M.S. and Y.N. did not appear before the court although they had received the summonses. By a default judgment of 3 December 1998 the City Court upheld the claim against M.S. and decided that if she failed to pay the debt, Y.N.’s apartment would have to be sold at a public auction.
On 10 December 1998 M.S. lodged a petition with the City Court to set aside the default judgment, as she had been sick at the time of the hearing. On 31 December 1998 she informed the court that she recognised the claim and agreed to pay the debt. She explained that together with her sister, Y.N., she had pledged the apartment. The money received for that had been invested in [an investment company] Safran. They had been paid interest for two months; thereafter, the investment company had gone bankrupt. M.S. requested that she be given a possibility to repay the debt in several instalments and that the pledged apartment not be sold.
Y.N. did not respond to the claim.
On 9 April 1999 the City Court held a hearing. The defendants failed to appear, although they had received summonses. M.S. had asked the court to hear the case in October or November, as she had taken up employment on a ship and could thus pay the debt in the future. The court had not been informed of the cause of Y.N.’s failure to appear.
On the plaintiff’s request, the court made a default judgment on 16 April 1999. It upheld the claim and ordered the sale of the apartment at a public auction.
On 16 April 1999 the applicant accepted the delivery of the judgments addressed to both Y.N. and her sister.
On 18 October 1999 the bailiff of the Tallinn City Court’s Enforcement Department recorded and seized the flat in the presence of Y.N. The latter made no requests or observations.
On 10 March 2000 the apartment was sold at a public auction. I.K., the only person who made a bid, acquired the apartment for EEK 120,000 (EUR 7,668). In the applicant’s opinion, the market value of the apartment was EEK 240,000 (EUR 15,335). According to the auction record, I.K. and A.K. were present as witnesses.
On 4 April 2000 the applicant brought an action in the Tallinn City Court against Y.N. and AB Elukindlustuse AS. According to the statement of claim he had obtained information concerning the pledge agreement from the bailiff on 21 March 2000. He requested the City Court to invalidate the pledge agreement, relying on section 17(4) of the Family Act (Perekonnaseadus) and section 66 of the Civil Code (General Principles) Act (Tsiviilseadustiku üldosa seadus).
In her reply of 27 May 2000, Y.N. recognised the applicant’s claim. It had been an error on the part of the notary to attest the pledge agreement without the applicant’s consent.
On 27 May 2000 the applicant submitted to the City Court that on 27 April 2000 he had become aware of the fact that on 10 March 2000 the apartment had been sold at a public auction to I.K. He argued that the sale of the apartment at public auction could not have been lawful due to the unlawfulness of the pledge agreement. Therefore, the sale of the joint property at the auction had had no basis in law. He made a reference to Article 64-7 of the Code of Debt Enforcement Procedure (Täitemenetluse seadustik). Moreover, he contended that he had unwillingly lost the possession of the apartment. Accordingly, under section 95(3) of the Property Act (Asjaõigusseadus), the buyer at the auction had not become the owner of the apartment. He requested that the results of the auction be declared invalid, that his entitlement to half of the apartment be recognised and that the apartment, which had been unlawfully repossessed, be returned.
On 8 September 2000 the City Court involved I.K. in the proceedings as a defendant.
On 8 March 2001 the applicant made a request to amend the claim. He argued that the fundamental conditions of the auction had been violated, since joint property could be sold only with the consent of the joint owners. However, he had not given such consent. He relied on Articles 64-7 and 6410(4) of the Code of Debt Enforcement Procedure.
On 22 March 2001 the City Court involved the State in the proceedings as a defendant.
At the hearing of 23 October 2001 the applicant’s lawyer argued that the conduct of the auction had been in violation of law. The applicant had not been informed about the auction and he had become aware of the sale of the apartment only after the auction. According to I.K. he had been to see the apartment in the evening of the auction day. He had met the applicant who had told him that he was Y.N.’s husband and that I.K. would not get the apartment.
By a judgment of 7 November 2001 the City Court upheld the claims in part. It found it established that the apartment had been privatised [bought on favourable conditions from the municipality] in 1994, when the applicant and Y.N. were already married. Therefore, the apartment had been in the joint ownership of the spouses. It further observed that, according to section 17(4) of the Family Act, movable property in the joint ownership of spouses, where it had to be entered in a register, could not be transferred or pledged without the written consent of the other spouse regardless of in which spouse’s name the property had been registered. The City Court concluded that there had been a substantial breach of law and declared the pledge agreement invalid, relying on, inter alia, section 66 of the Civil Code (General Principles) Act.
The remainder of the applicant’s claims were rejected by the City Court. The court found that there was no legal ground to invalidate the results of the public auction as its fundamental conditions had not been violated. Nor was there any ground to recognise the applicant’s entitlement to a half legal share in the apartment, since the buyer had acquired the apartment at a public auction arranged in order to secure the execution of a court judgment. The buyer’s title to the apartment was protected under section 95(3) of the Property Act. The City Court held that Article 64-10 of the Code of Debt Enforcement Procedure concerning regulations with regard to joint property was not applicable in the case, since the case at issue concerned enforcement in respect of pledged property. Accordingly, Article 64-11, a provision concerning pledged property, had to be applied. The applicant had not alleged a violation of that provision.
In his appeal the applicant argued that it was incomprehensible that the City Court, having invalidated the pledge agreement, had refused to recognise the applicant’s title to the apartment. He argued that he had lost possession of the apartment against his will and, therefore, he was entitled to claim possession of the property. He was of the opinion that due to the invalidity of the pledge agreement the subsequent transactions could have no legal effect. He also raised the question of State responsibility in respect of the sale of the apartment, arguing that the State should have verified all the relevant circumstances. He noted that he had been entered into a register as Y.N.’s husband and that the apartment in issue was his permanent place of residence. He argued that I.K. could not be considered a bona fide owner and that the conduct of the auction had been in breach of law, since it had concerned the spouses’ joint property which had been pledged unlawfully.
On 19 April 2002 the Tallinn Court of Appeal (Tallinna Ringkonnakohus) dismissed the appeal. It found that the auction had been lawful and rejected the applicant’s allegation that I.K. was entitled to claim compensation from the State.
The Court of Appeal noted that according to the principle of abstraction (abstraktsiooniprintsiip) underlying the Property Act, the invalidity of a contract creating obligations (kohustustehing) [e.g. a sales contract or pledge agreement] did not render invalid the transfer of property (käsutustehing). Even the transfer of property by a person who was not the owner could have legal consequences and was not inevitably invalid. Therefore, the fact that the pledge agreement had been declared invalid in this case did not mean that the remainder of the applicant’s claims had to be upheld. The court could not declare the auction invalid on the grounds relied on by the applicant. Therefore, his claims concerning the recognition of his title and repossession of the property were also unfounded. Since I.K. had acquired title to the apartment at a public auction held on the basis of a court judgment, his right of ownership could not be affected by challenging the preceding transactions. The right of the holder of the pledge to have the object of the pledge sold at an auction had been confirmed by a judgment. I.K.’s title was protected against the disputes between the previous owners and other persons. The arguments concerning the bad faith of the buyer were irrelevant in a case where the property was acquired at an auction. A compulsory auction could be invalidated only on grounds provided for by the law, i.e. in case a fundamental breach of law had been involved in the conduct of the auction. The applicant had not relied on any such ground in his claim. The court noted that there existed no register concerning conclusion and dissolution of marriages.
The Court of Appeal noted that the applicant had the right to lodge a claim against his wife who had concluded the pledge agreement concealing the fact that she had been married.
The applicant appealed to the Supreme Court (Riigikohus). He submitted that on the basis of the City Court’s judgment of 16 April 1999 the apartment, where he also lived, had been sold at an auction. He argued that he had become aware of that when the apartment had already been sold. On 7 November 2001 the City Court had declared the pledge agreement invalid. According to section 66 of the Civil Code (General Principles) Act, a void transaction was invalid from inception, it had not to be performed and the parties to it should return what had been received by the void transaction, or if this was not possible, they should compensate for it in money. As the judgment of 16 April 1999 had been based on an invalid agreement, the judgment itself was also unlawful and invalid. Therefore, the auction sale of the apartment had also been unlawful.
He claimed that the Ministry of Justice had to compensate the material damage caused to him by the unlawful judgment of 16 April 1999. Moreover, he contended that he had known nothing about the sale of the apartment. The information concerning public auctions was published only in the “Official Notices” (Ametlikud Teadaanded). Ninety-eight per cent of the population was unaware of the existence of such a publication. It was published only in the Estonian language, while more than one third of the Estonian population did not know Estonian. This was in violation of Article 12 of the Estonian Constitution, according to which no one should be discriminated against on the basis of language. An auction was business – that was why each inhabitant of the country had the right to be informed about it and the information should be published in several languages. Therefore, Article 44 of the Constitution, according to which everyone had the right to receive information, was violated. The applicant also argued that section 95(3) of the Property Act was ambiguous and contrary to the Constitution and international legal practice. He requested that the Supreme Court quash the Court of Appeal’s judgment in so far as the court had recognised the lawfulness of the acquisition of the apartment by I.K., since the acquisition that was clearly based on fraud could not be considered lawful. He further requested that the results of the auction be invalidated and that the constitutionality of the auction rules and section 95 of the Property Act be examined. Finally, he requested that the degree of responsibility of the Ministry of Justice for the unlawful acts of the judge who had made the judgment of 16 April 1999 be determined.
On 16 August 2002 the Supreme Court refused the applicant leave to lodge an appeal with it.
Section 17(4) of the Family Act (Perekonnaseadus) provided that movable property in the joint ownership of spouses, where it had to be entered into a register, could not be transferred or pledged without the written consent of the other spouse regardless of in which spouse’s name the property was entered in the register.
According to section 66 of the Civil Code (General Principles) Act (Tsiviilseadustiku üldosa seadus), a void transaction was invalid from inception, it had not to be performed and the parties to it had to return what had been received by the void transaction, or if this was not possible, they had to compensate for it in money.
According to section 95 of the Property Act (Asjaõigusseadus) a person who had acquired an object by delivery in good faith would not become its owner, if the owner had been deprived of possession of the object against his or her will. An exception was made in respect of objects which had been sold at a public auction. A buyer at a public auction acquired the object regardless of whether its owner had been deprived of possession against his or her will.
Article 26 § 1 of the Code of Debt Enforcement Procedure (Täitemenetluse seadustik) provided that the debtor and the claimant had, inter alia, the right to be present at the enforcement actions performed by the bailiff, to have access to the materials of the enforcement case file, to make statements concerning the enforcement procedure, to present opinions about the ownership and price of the property and to lodge an appeal against the bailiff’s activities to the head of the enforcement department or to the court.
Under Article 34 § 2(5) of the Code the head of the enforcement department could suspend the enforcement proceedings in case a complaint concerning the activities of the bailiff had been lodged. According to Article 36 § 2 of the Code the decision of the head of the enforcement department could be challenged in a county or city court.
According to Article 63 of the Code the auction had to be conducted in the presence of two witnesses or a police officer.
Article 64-7 of the Code stipulated that a court had to declare an auction invalid, within five years from its date, if the object had been sold to a person who had had no right to buy it or if other fundamental conditions of the auction had been violated.
Article 64-10 § 4 of the Code provided that joint property as a whole could be sold only with the consent of the joint owners.
According to Article 64-10 § 5 of the Code, upon signing the report of seizing the property or upon receiving it, the debtor was required to inform the bailiff about the existence of items belonging to joint or common ownership among the seized property. Otherwise the debtor would forfeit his or her right to base a complaint concerning the incorrect drawing up of the report on these grounds.
Article 64-11 § 1 of the Code provided that pledged property could be seized or sold only with the consent of the holder of the pledge.
According to Article 77 of the Code the debtor and the claimant could lodge a complaint to the head of the enforcement department in respect of the activities of the bailiff. The complaint could be lodged within ten days of the performance of the action complained of or from the day on which the complainant became aware of the action. The complaint had to be reviewed with the participation of the claimant and the debtor within ten days. An appeal against the decision of the head of the enforcement department could be lodged with a county or city court. The court had to review the complaint within two weeks; the court’s decision could be appealed against pursuant to the procedure provided for in the Code of Civil Procedure.
Article 147 of the Code of Civil Procedure (Tsiviilkohtumenetluse seadustik) set forth the requirements in respect of the form and content of a statement of claim. It had to be submitted to a court in writing and had to set out, inter alia, the clearly expressed claim of the plaintiff, the facts on which the action was based and evidence which proved the relevant facts.
According to Article 154 § 1 of the Code a plaintiff had the right to amend the cause or object of an action before the summations in a court of first instance by submitting a petition to that effect. The provisions concerning a statement of claim applied to such petition.
Article 319 § 2 of the Code provided that in an appeal against a judgment of a first instance court, a plaintiff did not have the right to amend the cause or object of action, or to file a claim which had not been filed in the court of first instance.
According to Article 353 of the Code the Supreme Court had to verify on the basis and within the limits of an appeal whether a court of appeal had correctly interpreted and applied the law and whether the court had correctly observed the provisions of procedural law (§ 1).
In an appeal to the Supreme Court, an appellant did not have the right to amend the cause or object of action or to submit claims that had not been submitted earlier (§ 2).
The Supreme Court could not establish the facts underlying the action. It had to base its judgment on the facts established by a lower court (§ 3).
Under Article 372 § 1(2) of the Code a person whose rights and duties had been adjudicated by a court, but who had not been involved in the proceedings, could request the Supreme Court to rectify the judgment concerned (kohtuvigade parandamise avaldus).
According to section 2(1) of the Notaries Act (Notariaadiseadus), notaries’ offices were institutions in public law whose duty was to certify interpersonal legal relationships and legal facts, within the limits determined by the State, in order to secure the protection of the lawful rights of persons and the State, and the stability of public order.
Section 3(1) of the Act provided that a notary was an independent person who held a State office as a contractor and performed the duties of a notary pursuant to the procedure prescribed in this Act and other legislation.
Section 3(5) of the Act stipulated that a notary was liable for damage caused by his or her professional activities to the extent provided for in section 20 of this Act. The State was not liable for damage caused by a notary.
According to section 20(1) of the Act a notary was liable for direct proprietary damage caused as a result of wrongful acts performed by him or her intentionally or due to gross negligence. Section 20(2) provided that a notary was liable for damage caused by negligence only to the extent that the damage remained uncompensated by other persons who had caused it.
The Civil Law Chamber of the Supreme Court has held a notary responsible for the financial loss the plaintiff suffered as a result of the notary’s failure in 1997 to verify the authority of the parties to enter into a transaction (the Supreme Court settled the case finally on 16 June 2004, having heard it on three occasions – cases nos. 3-2-1-129-02, 3-2-1-125-03, 3-2-1-74-04)
According to the decision of 6 February 1998 of the Administrative Law Chamber of the Supreme Court (case no. 3-3-1-3-98), complaints against the activities of the bailiff were subject to adjudication in the county or city court, where a person was unsatisfied with the decision taken in the matter by the head of the enforcement department.
In the judgment of 30 December 2003, the Tallinn Court of Appeal (case no. 2-2/1549/2003) confirmed the Tallinn City Court’s view that the failure of a bailiff to inform the debtor of his or her rights in the enforcement proceedings constituted a violation of fundamental conditions of the auction in which case the auction had to be declared invalid. A similar position was taken by the Civil Law Chamber of the Supreme Court in the judgment of 16 November 2004 (case no. 3-2-1-122-04). The Supreme Court declared an auction invalid since the bailiff had failed to inform the debtor sufficiently about the enforcement proceedings and had thus infringed the latter’s right to be present during the performing of an enforcement action.


ITEMID: 001-97419
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF NIKOLAY ZAYTSEV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
TEXT: 4. The applicant was born in 1927 and lives in Pskov.
5. The applicant, a retired military serviceman, brought court proceedings against the Military Service Commissariat of Pskov Region (“the Commissariat”).
6. On 25 October 2002 the Pskov Town Court of Pskov Region ruled that the applicant was entitled to a monthly allowance for health damage related to professional hardship of 4,540.52 Russian roubles (RUB) and a monthly allowance for food expenses of RUB 544.80. The court also found that the debt accrued as a result of previous underpayment of the monthly allowance for health damage was RUB 49,566.56, the debt in respect of the allowance for food expenses was RUB 734.40 and the debt in respect of the annual allowance for health damage accrued in 2001 was RUB 281.50. The court also ordered that the monthly allowances awarded to be subsequently adjusted in line with inflation.
7. The judgment was not appealed against and on 5 November 2002 became final.
8. On 19 December 2003 and 23 March 2004 the arrears awarded for the period from 1 August 2001 to 31 March 2004 were paid to the applicant.
9. On 11 November 2003 the Commissariat applied for the supervisory review of the judgment.
10. On 12 March 2004 the Presidium of the Supreme Court of Russia, by way of supervisory review proceedings, quashed the judgment of 25 October 2002 in the part obliging the respondent Commissariat to index-link the payments and upheld the remainder of the first instance court’s findings.
11. On 5 August 2004 the Pskov Town Court rejected the Commissariat’s request to annul the judgment of 25 October 2002 due to discovery of new circumstances. The applicant made written submissions and, apparently, was present at the court room.
12. On 30 December 2004 the Commissariat introduced a new application for the supervisory review of the judgments of 24 October 2002 and 12 March 2004 with the Supreme Court of the Russian Federation.
13. On 30 September 2005 the Presidium of the Supreme Court of the Russian Federation, by way of supervisory review proceedings, quashed the judgment of 25 October 2002 on the ground of incorrect application of the domestic law and remitted the case for a new examination. The Presidium also annulled the judgment of 12 March 2004 insofar as the latter upheld the award made on 25 October 2002.
14. On 27 January 2006 the Pskov Town Court examined the case afresh and granted the applicant’s claims in full. The court ordered the Commissariat to pay the applicant RUB 37,896.38 in arrears in food allowance for the period from 1 July 2000 to 31 December 2005 RUB 36,930.96 in arrears in compensation for health damage. The applicant was further awarded RUB 1,640.91 monthly in respect of the food allowance and RUB 6,838.04 in compensation for health damage. On 4 April 2006 the judgment was upheld by the Pskov Regional Court. On 5 May 2006 the award was enforced.
VIOLATED_ARTICLES: 6


ITEMID: 001-102697
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF RADVAK AND RADVAKOVA v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13
JUDGES: David Thór Björgvinsson;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano
TEXT: 4. The applicants are siblings. They were born in 1984 and 1983 respectively and live in Košice.
5. On 29 March 2000 the applicants claimed payment of an amount then equivalent to 428 euros (EUR) from three defendants before the Košice II District Court.
6. On 19 March 2007 the applicants informed the district court about their intention to withdraw their action and requested the district court to discontinue the proceedings. They did so after they had learned that it was impossible to verify a signature on a relevant document.
7. On 7 June 2007 the district court discontinued the proceedings and obliged the applicants to pay the court fees.
8. On 31 August 2007 the Košice Regional Court, upon the applicants' appeal in respect of the court fees, upheld the first-instance decision. The proceedings finally ended on 24 October 2007.
9. On 19 March 2007 the applicants complained to the Constitutional Court about the length of the proceedings before the district court. On 24 May 2007 the Constitutional Court declared their complaint admissible.
10. On 11 October 2007 the Constitutional Court dismissed the applicants' complaint. It stated that it could examine complaints concerning length of proceedings only where the proceedings were still pending and the applicants had a genuine legal interest in their continuation. The Constitutional Court held that there had been no legal uncertainty in the case following the applicants' withdrawal of the action and therefore their lodging of the constitutional complaint had been formalistic and unfounded.
11. Section 53 (3) provides that a constitutional complaint can be lodged within a period of two months from the date on which the decision in question has become final and binding or on which a measure has been notified or on which notice of other interference has been given. As regards measures and other interferences, the above period commences when the complainant could have become aware of them.
12. It has been the practice of the Constitutional Court to entertain complaints about excessive length of proceedings only where the proceedings complained of are pending before the authority liable for the alleged violation at the moment when such complaints are lodged (III. ÚS 150/03).
13. In two judgments (I. ÚS 182/06, I. ÚS 23/06) submitted by the applicants, the Constitutional Court, contrary to the above practice, examined alleged delays notwithstanding that the proceedings had ended prior to the filing of a constitutional complaint. The Constitutional Court found a violation of the complainants' right to a hearing within a reasonable time.
14. The Constitutional Court has held that the aim of the right to a hearing without unjustified delays is to eliminate legal uncertainty in which a person, who requests delivery of a decision by a State authority, is placed. Such legal certainty is normally brought about as a result of a final decision (I. ÚS 175/06).
15. In a number of cases the Constitutional Court held that a constitutional complaint was manifestly ill-founded where the impugned conduct of a public authority could not have violated the fundamental right as alleged by the plaintiff for lack of a causal link. Such was also the case where a procedural situation or the state of the proceedings before a public authority objectively excluded the possibility that such an authority (ordinary court) violates the afore-mentioned fundamental right (IV. ÚS 16/04, II. ÚS 1/05, II. ÚS 20/05, IV. ÚS 55/05, IV. ÚS 288/05).
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-69653
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: KAWALKO V. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant Zygmunt Pilecki is a Polish national, who was born in 1945 and lives in Szczecin, Poland.
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1991 the applicant lent a certain sum to R.K. On 21 July 1993 he sued his debtor before the Szczecin District Court (Sąd Rejonowy).
On 5 October 1993 the court issued a payment order granting the applicant's claim.
In December 1993 the bailiff of the Szczecin District Court instituted enforcement proceedings against R.K.
The enforcement proceedings are pending.
On 17 September 2004 the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”) entered into force. It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings.
Section 2 of the 2004 Act reads, in so far as relevant:
“1. Parties
Section 5 reads, in so far as relevant:
“1. A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending. ...”
Section 12 provides for measures that may be applied by the court dealing with the complaint. It reads, in so far as relevant:
“1. The court shall dismiss a complaint which is unjustified.
2. If the court considers that the complaint is justified, it shall find that there was an unreasonable delay in the impugned proceedings.
3. At the request of the complainant, the court may instruct the court examining the merits of the case to take certain measures within a fixed time-limit. Such instructions shall not concern the factual and legal assessment of the case.
4. If the complaint is justified the court may, at the request of the complainant, grant ... just satisfaction in an amount not exceeding PLN 10,000 to be paid by the State Treasury. If such just satisfaction is granted it shall be paid out of the budget of the court which conducted the delayed proceedings.”
Section 18 lays down transitional rules in relation to the applications already pending before the Court. It reads, in so far as relevant:
“1. Within six months after the date of entry into force of this law persons who, before that date, had lodged a complaint with the European Court of Human Rights ... complaining of a breach of the right to a trial within a reasonable time guaranteed by Article 6 (1) of the Convention for the Protection of Human Rights and Fundamental Freedoms ..., may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to the Court had been lodged in the course of the impugned proceedings and if the Court has not adopted a decision concerning the admissibility of their case.
...”
On 18 January 2005 Supreme Court (Sąd Najwyższy) adopted a resolution (no. III SPP 113/04) in which it ruled that while the 2004 Act produced legal effects as from the date of its date of entry into force (17 September 2004), its provisions applied retroactively to all proceedings in which delays had occurred before that date and had not yet been remedied.


ITEMID: 001-91934
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF TOIVE LEHTINEN v. FINLAND (NO. 2)
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: 5. The applicant was born in 1944 and lives in Tampere. He was the principal partner in a construction company, Toprakenne Ky Toive Lehtinen (limited partnership), which was wound-up in 1991.
6. On 8 May 1995 the SSP Bank (hereinafter “SSP”) initiated civil proceedings to enforce various debts against the applicant. The applicant was summoned on 17 May 1995. Subsequently the applicant filed a counter-claim, which was eventually joined to the original claim on 5 January 1996.
7. Between 4 December 1995 and 28 May 1998 a total of ten preparatory hearings and three main hearings were organised.
8. During the same period the District Court issued six partial decisions. The decisions concerned requests to grant the applicant free legal aid, to dismiss the opposing legal counsel, to declare the trial material classified, to declare one claim inadmissible, to relieve the applicant’s counsel of his tasks and to order the claimant to provide certain documents as evidence.
9. On 24 June 1998 the District Court gave its judgment, ordering the applicant to pay some 1,487,603 euros (EUR) with interest to SSP and dismissing all of the applicant’s counter-claims.
10. In his appeal the applicant challenged the judgment in its entirety as well as the earlier decisions of the District Court not to dismiss the opposing counsel and the refusal to order the claimant to produce certain documents as evidence. He requested that the case be remitted to the District Court and that an oral hearing be held before the Court of Appeal (hovioikeus, hovrätten) with regard to the missing documents or – if the case was not remitted – with regard to the entire case. He further requested that he be exempted from paying SSP’s legal fees or at least the value-added tax (VAT) on the fees. He also requested reimbursement of his own legal fees.
11. On 30 November 1999 the Court of Appeal remitted the case to the District Court, ordering SSP to provide three specified documents (minutes from various board meetings) at the hearing before the District Court and allowing the applicant to provide some additional evidence which had previously been refused by the District Court.
12. The proceedings became pending before the District Court on 27 March 2000. Between 31 May 2000 and 26 March 2001 a total of three preparatory hearings and five main hearings were organised.
13. On 6 September 2000 the District Court ordered SSP to provide various additional documents, including the above-mentioned ones. All but two of the requested documents were provided on 30 October 2000. The missing documents were no longer in the possession of SSP or they had not been found.
14. On 5 June 2001 the District Court decided on the case for the second time, finding that the examination of the previously presented evidence, the new evidence and the new hearing of all the witnesses did not give rise to any new conclusions. The judgment was essentially the same as the one given in the first set of proceedings.
15. In his appeal the applicant requested that the judgment be quashed, that an oral hearing be held, and that he be exempted from paying SSP’s legal fees or at least the VAT thereon. He also requested reimbursement of his own legal fees. In the addendum to his appeal he requested the Court of Appeal to order the missing documents to be provided and to remit the case again to the District Court since the judgment did not specify the new evidence nor address the issue of changed witness statements. He also claimed that the judge had been biased.
16. On 21 February 2003 the Court of Appeal dismissed the applicant’s request to have the case remitted again to the District Court and held that it was plausible that the missing documents were not in the possession of SSP. It further found that the judge in question had not been biased and that there was no indication that the new evidence had not been taken into consideration. In regard to the latter, the Court of Appeal added that, in any event, the relevant witnesses would be heard again.
17. After having held an oral hearing over four days the Court of Appeal upheld the decision of the District Court on 25 September 2003. The applicant was exempted from paying VAT on the legal fees incurred before the Court of Appeal, but the court held that since he had not requested an exemption before the District Court, the exemption did not apply to legal fees incurred at that stage.
18. On 24 June 2004 the Supreme Court (korkein oikeus, högsta domstolen) granted leave to appeal with regard to the issue of exemption from the payment of VAT on the legal fees incurred before the District Court. Leave to appeal was refused as regards the remainder of the case.
19. On 18 March 2005 the Supreme Court gave its judgment on the VAT exemption.
VIOLATED_ARTICLES: 6