ITEMID: 001-58264
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 1998
DOCNAME: CASE OF STYRANOWSKI v. POLAND
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Non-pecuniary damage - financial award
TEXT: 7. The applicant, a retired judge, was born in 1923 and lives in Olsztyn, Poland.
8. The applicant retired in May 1991. The amount of his pension was calculated by the Social Security Board (Zakład Ubezpieczeń Społecznych), a public institution responsible for, inter alia, the administration of old age pensions. The applicant’s pension was calculated in accordance with the relevant provisions of the Old Age Pensions Act of 1972. It was based on his contributions to the pension scheme and on the amount of his salary at the time of his retirement, which was equivalent to 314 per cent of the average salary.
9. On 1 December 1991 the Social Security Board issued a new decision concerning the applicant’s pension. This decision was based on the law amending the Old Age Pensions Act adopted on 17 October 1991 and it reduced the applicant’s pension by 1,075,600 old zlotys. The reduction resulted from a provision in the amending legislation which imposed a ceiling on the amount of the salary used for the calculation of the pension. The ceiling was equal to 250 per cent of the average salary, regardless of the actual amount of the salary at the time of retirement.
10. On 17 December 1991 the applicant appealed against this decision to the Olsztyn Regional Court (Sąd Wojewódzki). He submitted that the 250 per cent ceiling introduced by the amendment deprived him of a part of his pension.
11. On 25 May 1992 the Warsaw Court of Appeal (Sąd Apelacyjny) agreed to the request submitted by all the judges of the Olsztyn Regional Court to have the applicant’s case examined by another court in view of the fact that he had been their superior for many years. The case was subsequently transferred to the Warsaw Regional Court.
12. On 8 September 1992 the Warsaw Regional Court held a hearing and dismissed the applicant’s appeal against the decision of 1 December 1991. It considered that the impugned decision was in conformity with the relevant provisions of the Old Age Pensions Act as amended.
13. Subsequently, on 9 February 1993 the Social Security Board took another decision concerning the applicant’s pension. It was based on certain new documents indicating that the applicant’s salary at the time of his retirement had in fact been higher than the amount which had been used as the basis of the decision taken on 1 December 1991 (see paragraph 9 above). The applicant appealed against this decision, repeating his earlier complaint that the basis for the recalculation of his pension should not have been limited to 250 per cent of the average salary. On 14 May 1993 the Warsaw Regional Court allowed the applicant’s appeal in part as regards the period up until 1 January 1992 but dismissed it in so far as it related to the period after that date, i.e. after the entry into force of the amendment of 17 October 1991.
14. On 17 December 1991 the applicant also filed with the Olsztyn District Court a compensation claim against the Social Security Board. He complained that his pension had been recalculated and reduced in accordance with applicable legislation and in disregard of the fact that his actual salary at the time of his retirement had been equivalent to 314 per cent of the average salary. Furthermore, the applicant submitted that the Social Security Board, in basing itself on the 1991 law imposing a ceiling of 250 per cent of an average salary on the amount used for the calculation of a pension, had failed to respect its obligations towards him. These obligations arose from the applicant’s payment of contributions to the social security old age pension scheme over a period of forty-four years. Throughout this period no legal provision had ever provided for any ceiling on the amount of the retirement pension. The applicant alleged that the actions of the Social Security Board were unlawful and rendered the Board liable in tort.
15. On 20 May 1992 the Warsaw Court of Appeal agreed to the request submitted by all the judges of the Olsztyn Regional Court to have the appeal in the applicant’s compensation proceedings examined by another court. That request was based on the fact that the applicant used to be a Deputy President of the Olsztyn Regional Court. It ordered that the appeal proceedings in the case be transferred to the Ostrołęka Regional Court which received the case file on 19 June 1992.
16. On 26 June 1992 the Ostrołęka Regional Court agreed to the request submitted by all the judges of the Olsztyn District Court to have the case examined in the first instance by another court and decided that the case should be tried by the Szczytno District Court.
17. On 29 September 1992 the Ostrołęka Regional Court, at the request of the judges of the Szczytno District Court, decided that the case should be examined in the first instance by the Przasnysz District Court.
18. The first hearing before the Przasnysz District Court was fixed for 9 November 1992. However, the court adjourned the hearing because it did not receive a confirmation that the defendant Social Security Board had received the summons.
19. On 17 November 1992 the applicant informed the Przasnysz District Court that he maintained his claim and requested that a certain witness be heard. The Przasnysz District Court requested the Olsztyn District Court to hear this witness.
20. The hearing before the Olsztyn District Court was fixed for 24 November 1992 but was adjourned as the witness requested by the applicant failed to appear.
21. The date of the hearing before the Olsztyn District Court was then fixed for 30 December 1992. The applicant requested that this hearing be adjourned. The Olsztyn District Court fixed a new hearing for 14 January 1993 and heard the witness requested by the applicant on that date.
22. On 19 January 1993 the applicant requested that the Olsztyn District Court rectify the minutes of the hearing held on 14 January 1993. The Olsztyn District Court complied with this request on 15 April 1993.
23. The next hearing before the Przasnysz District Court was scheduled for 18 May 1993 but was adjourned, as the court did not receive a confirmation that the defendant had received the summons.
24. On 17 September 1993 the applicant complained to the Przasnysz District Court about the length of the compensation proceedings and requested that the date of the next hearing be fixed. He also requested that the former Prime Minister be heard as a witness to support his claim that in the past social security contributions had been used by the State for purposes other than the payment of social security benefits.
25. On 20 September 1993 the applicant requested that the date of the next hearing be fixed without delay. On the same date the presiding judge ordered that the applicant be informed that due to serious staffing difficulties the date of the hearing would be fixed at a later stage.
26. The next hearing was fixed for 25 January 1994. On 21 January 1994 the applicant informed the Przasnysz District Court that he would be unable to attend the hearing, at which his presence was not obligatory. He maintained his claim and referred to the Constitutional Court’s judgment of 11 February 1992 which had found certain provisions of the amendment to the Old Age Pensions Act of 17 October 1991 to be incompatible with the Constitution. On 25 January 1994 the hearing was adjourned, as the parties did not appear.
27. The next hearing was fixed for 23 September 1994. On 16 September 1994 the applicant informed the Przasnysz District Court that he would be unable to attend the hearing, at which his presence was not obligatory. He maintained his claim and again requested that the former Prime Minister be heard.
28. On 23 September 1994 the hearing was further adjourned as the Przasnysz District Court decided to request the Social Security Board to submit the applicant’s case file to it. It reached the court on 27 October 1994.
29. On 7 December 1994 the applicant complained to the Minister of Justice about the length of the proceedings and in particular about the hearings having been adjourned on numerous occasions without justification.
30. The President of the Ostrołęka Regional Court replied in a letter of 10 January 1995 informing the applicant that his case should be considered privileged since, in view of the fact that the Przasnysz District Court was understaffed, the intervals between the hearings were such as to secure appropriate progress in the proceedings. He also pointed out that the applicant had failed to appear at all these hearings and that the next hearing had been set for 7 February 1995 and that the case was ready for a prompt ruling.
31. In his reply of 11 January 1995 the applicant stressed that he had been present at the hearing of 14 January 1993 and had extensively pleaded his case. Although it was true that he had not been present at other hearings, he had requested that the case be considered in his absence. Moreover, the court had never required his attendance at any of the hearings. He had submitted several letters to the court explaining his position in the light of the progress in the case. It had not transpired from the information which he had obtained on the phone after every hearing that any of the hearings had been adjourned either because of his absence or his failure to submit documents or evidence required by the court.
32. In a letter to the Przasnysz District Court of 2 February 1995 the applicant stated that he would be unable to attend the hearing on 7 February 1995 and pointed out that his attendance was not obligatory. He maintained his claim and submitted additional written pleadings to support it.
33. On 7 February 1995 the Przasnysz District Court rejected the applicant’s claim, considering that the matter was res judicata. It noted that the issue of the ceiling imposed on his pension had already been decided in two sets of proceedings which resulted in the judgments of 8 September 1992 and 14 May 1993 (see paragraphs 12–13 above).
34. On 8 February 1995 the applicant requested the reasoned judgment which was served on him on 3 April 1995.
35. On 5 March 1995 there was a fire in the building of the Przasnysz District Court.
36. On 6 April 1995 the applicant lodged an appeal against the decision of 7 February 1995.
37. On 13 July 1995 the Ostrołęka Regional Court quashed the decision of 7 February 1995 and ordered that the case be reconsidered. It observed that in the appeal proceedings the only issue which had been decided was whether the calculation of the applicant’s pension complied with the relevant legal provisions. However, in the compensation proceedings the applicant claimed compensation for the alteration of the conditions of the contract with the Social Security Board and his claim was based on tort. As these two claims were not identical, the compensation claim could not be considered res judicata.
38. The next hearing before the Przasnysz District Court was held on 3 October 1995. The court deferred the delivery of the judgment. It was then delivered on 17 October 1995. On 29 October 1995 the applicant requested the reasoned judgment which was served on him on 5 December 1995. On 13 December 1995 the applicant filed an appeal with the Ostrołęka Regional Court which dismissed it on 16 January 1996.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-89901
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF VORONIN v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
TEXT: 4. The applicant was born in 1954 and lives in Novovoronezh, a town in the Voronezh Region.
5. As a victim of Chernobyl, the applicant was entitled to benefits. Considering himself underpaid, he brought two actions against a local welfare authority.
6. On 6 May 2004 the Novovoronezh Town Court awarded the applicant 92,648.54 Russian roubles (RUB) in arrears. This judgment became binding on 17 May 2004 and was enforced on 11 November 2005.
7. On 10 May 2006 the Town Court awarded the applicant RUB 1,080,629.27 in arrears and fixed a new amount of periodic payments. This judgment became binding on 18 July 2006. The welfare authority considered that the award contained an error to the extent that it had not taken into account a past payment. For this reason, on 27 November 2006 the Town Court clarified the judgment and reduced the award to RUB 987,980.73. The judgment was enforced by 29 November 2007.
8. Under section 9 of the Federal Law on Enforcement Proceedings of 21 July 1997, a bailiff must enforce a judgment within two months. Under section 242.2.6 of the Budget Code of 31 July 1998, the Ministry of Finance must enforce a judgment within three months.
VIOLATED_ARTICLES: 6
P1
VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-22204
LANGUAGEISOCODE: ENG
RESPONDENT: ESP
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: CAMPMANY Y DIEZ DE REVENGA and LOPEZ-GALIACHO PERONA v. SPAIN
IMPORTANCE: 1
CONCLUSION: Inadmissible
JUDGES: Georg Ress
TEXT: The applicants are Spanish nationals who were born in 1925 and 1961 and live in Madrid. They are represented before the Court by Mr Guillermo Regalado Nores and Mr Manuel Ollé Sese, lawyers practising in Madrid.
The first applicant is the editor of a general news magazine, Epoca, and the legal representative of the company that publishes the magazine. The second applicant is a journalist.
In its edition of 4 March 1991 the magazine Tribuna referred in its “Prying Eye” column to what one of its journalists called “a new sex scandal between an attractive aristocrat and a banker from this country” and to the existence of pictures immortalising their encounter in a Madrid hotel. The rumour was widely repeated in the media, although the persons to whom the Tribuna story related were not identified.
On 12 March 1991, while on air with the presenter of the Radio 4 programme “Night Carmen” broadcast by Radio nacional de España, a journalist, C.H., referred to the rumour and identified the Duchess of M. and E.B. as the protagonists of “the much-publicised romance between the aristocrat and the banker, both married with lots of children” and gave the names of their spouses.
In its 25 March 1991 edition, Epoca, of which the first applicant was the editor, published an article by the second applicant concerning the alleged adulterous relationship. Photographs of the two people concerned appeared on the magazine cover with the following caption: “Suspected relationship between E.B. and the Duchess of M.; a new scandal breaks”. In a four-page report that included two photographs of the persons implicated in the alleged relationship and photographs of their families, the second applicant referred to the rumours circulating about the romance in the media and said that those involved had been identified by Radio nacioñal de Espana. A reference was also made to information that had appeared in another report.
In the article the Duchess of M.’s husband was described as debonair, very chubby and known to his former classmates as “el platillo” (“the saucer”). Then, after giving the names of the children and the occupational activities of both the Duchess of M. and E.B., the second applicant added: “the family ties make this saga resemble an American television series”. He repeated statements made in another magazine that “the mysterious couple’s chosen love nest was a luxury Madrid hotel where they were caught by the photographer in two compromising situations”, the first at the hotel entrance and the second during a romantic encounter in the hotel corridors. The report was accompanied by the words of lewd ditties containing allusions to women, not only courtesans, but also duchesses who ended up getting the “Booty” (a reference to E.B.’s surname, Botín) and instructing Filipino women in the techniques of pleasure and who chased after bankers who were only too happy to oblige, paying scant regard to their qualities since their sole interest was money – “Booty” (Botín).
Furthermore, a second report by the second applicant was published in another edition of the magazine that appeared on 1 April 1991 under a title that was published on the cover: “The continuing enigma of the banker and the aristocrat: E.B. and the Duchess of M. deny any relationship”. Two large photographs of the couple appeared on pages 12 and 17. An account was given of the history of the case and references made to an attempt by E.B. to have copies of Epoca seized and to other judicial proceedings he had brought. The magazine also explained that the compromising photographs had still not been published.
As a result, the Duchess of M. and her husband brought a civil action before the Madrid first-instance judge no. 11 against the applicants and two reporters from Radio nacional de España on the basis of Institutional Law no. 1/82 of 5 May 1982 on the Protection of the Right to Honour, Private and Family Life and to Control the Use of One’s Likeness.
In a judgment delivered on 4 December 1992 after adversarial proceedings the Madrid first-instance judge no. 11 found in favour of the claimants in the civil action, holding that they had been the victims of an unlawful interference with their right to honour and to respect for their private life.
He gave inter alia the following reasons in his judgment:
“Three: honour as an authentic personality right may be offended by acts or interferences ... that entail a loss of esteem for a person either in the eyes of fellow citizens (the objective aspect) or in his or her own eyes (the subjective aspect). Under Article 18 of the current Constitution honour is ranked as a fundamental right and even though section 20 of the Institutional Law recognises and protects freedom of expression, that freedom is circumscribed in particular by the right to honour, to private life and to control one’s likeness...
...
Five: the information provided by Radio 4 and Epoca magazine constitutes an intolerable interference with the claimants’ honour which it is for the courts to remedy ... by setting the limits on the rights to impart information and to freedom of expression, the pillars of all democracies. In order to guide judges when they consider a defendant’s conduct unlawful the courts have established a series of principles to assist them in the performance of the delicate task of weighing up the various competing interests or, to coin the Anglo-American expression, “balancing”, which entails weighing in the balance the various circumstances capable of being defined in law so as to determine which of the rights in issue must prevail, the right to impart information or the right of others to respect for their honour or privacy or to control the use made of their likeness...
Six: ... As regards the written publication, the representatives acting for the defendants linked to the magazine Epoca cleverly retort that the reports did no more than transmit ‘journalistic information’ to its readers, as simple ‘scribes of news’ made by others. Although that affirmation is true because the defendants have not produced anything of substance of their own in the magazine, it nevertheless cannot serve to justify their conduct as they also had a duty to seek out the truth in a diligent manner ... as the reports did not merely repeat information that had been disseminated by others but were published as items of scandal or sensation.
Seven: an important detail that concerns all the defendants is the indisputable fact that the claimants are not public figures who, as the Constitutional Court has indicated, are afforded reduced protection under the Constitution as regards freedom to impart information on their activities that are of public interest or social utility... The claimants have not freely chosen to become public figures and, although they have a certain social standing, it is not something they have sought, as it neither appears nor has been proved that they desired publicity...”.
After dealing with the content of the reports in another paragraph of the judgment, the judge held: “the intentionally disproportionate use of scandalous or disparaging terms and the use of innuendo about matters for which there is not the least shred of evidence constitute unlawful practices that were clearly perpetrated by the magazine Epoca”.
As a consequence, the judge ordered the applicants to publish the full text of the judgment in the same column of Epoca, using the same typeface as that used in the report, and with an announcement of the judgment on the cover. Radio nacional de España was ordered to broadcast the text of the judgment on its frequencies in the same programme. The applicants and Radio nacional de España were also ordered to make reparation for the damage sustained by the victims in an amount to be assessed at the execution stage of the judgment, according to the criteria it laid down.
The applicants appealed against that judgment to the Madrid Audiencia Provincial, which, in a judgment of 26 January 1996, dismissed the appeal and upheld the impugned decision.
An appeal on points of law was dismissed by the Supreme Court on 24 September 1998. It held that the courts below had correctly decided the issues and had not infringed the applicants’ constitutional right to communicate or impart true information. It added that freedom of expression was curtailed by an obligation to omit anything which could be injurious or offensive and was unnecessary in the expression of ideas, opinions or value judgements. The report in question had focused on scandal and sensationalism, without any attempt being made to articulate a healthy public opinion.
Relying on Articles 24 (right to a fair hearing) and 20 (right to freedom of expression and to information) of the Constitution, the applicants lodged an appeal with the Constitutional Court. In a decision of 14 July 1999, which was served on the applicants on 23 July 1999, the Constitutional Court dismissed the appeal as ill-founded. With regard to the complaint under Article 20 of the Constitution, it held:
“... As a practical matter, as regards the so-called ‘neutral report’, this court stated in its judgment no. 232/1993, which was cited by the appellants: ‘when a media body divulges statements made by a third party that suggest that there has been an interference with the rights recognised by Article 18.1 of the Spanish Constitution, that divulgation is not entitled to the protection of Article 20.1 of the Spanish Constitution unless the truth of the statements attributed to the third party is proved and the statements ... relate to facts or circumstances of public importance’. Further, in judgment no. 41/1994..., it expressly added: ‘a report that is neutral in form or content may cease to be so if it assumes an informative character which is in practice incompatible with its function as a mere conduit for the message’ (paragraph 4 of the judgment). Thus the Supreme Court’s decision on the conflicting constitutional rights in the instant case, which is set out in its judgment upholding the judgments of the first-instance judge and the Audiencia Provincial, is consistent with the case-law cited above. The Supreme Court ... does not contest that, as a transcription of the information broadcast by Radio nacional, the information published by Epoca enjoyed formal protection as it satisfied the requirement of truth explained in judgmentjudgment on the issue of the freedom to impart information that also led the Supreme Court to find that the report in question had overstepped the bounds within which freedom of expression may legitimately be exercised... That finding is entirely consistent with the constitutional case-law applicable on the subject...”
“1. The following rights shall be recognised and protected:
(a) the right freely to express and disseminate thoughts, ideas and opinions by word of mouth, in writing or by any other means of reproduction;
...
(d) the right freely to receive and communicate true information by any means of dissemination.
2. The exercise of these rights may not be restricted by any prior censorship.
...
4. These freedoms shall be limited by respect for the rights secured in this Part, by the provisions of the implementing Acts and in particular by the right to honour and to a private life and the right to control use of one’s likeness and to the protection of youth and children.”


ITEMID: 001-71236
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: WYPYCH v. POLAND
IMPORTANCE: 2
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Andrzej Wypych, is a Polish national who was born in 1954 and lives in Kwidzyń. He was represented before the Court by Ms Beata Czech, a lawyer practising in Kwidzyń.
The applicant was elected to the Kwidzyń Town Council during the municipal elections of October 2002 and has served as a councillor since that date. His term of office lasts four years.
On 1 January 2003 amendments to the 1998 Local Government (County) Act, enacted in November 2002, came into force. These amendments impose an obligation on local councillors to disclose information to the public concerning their financial situation and property portfolio. This is to be done through a declaration which is submitted to the president of the local council. These declarations are subsequently published in the Public Information Bulletin, available to the general public via the Internet.
In February 2003 the applicant asked the Ombudsman to lodge a request with the Constitutional Court to examine whether the provisions of the 1998 Act, as amended in 2003, were compatible with the Constitution insofar as they imposed an obligation on local councillors to make detailed information available to the general public about their property and income. The applicant argued that the provisions of the 1998 Act had not previously provided for such a disclosure. He was of the opinion that this obligation was in breach with the 2001 Protection of Personal Data Act. He argued that making such information publicly available would facilitate political harassment and could expose him and his family to the threat of theft or burglary. He could refuse to submit a declaration, but he would then be deprived of the monthly emoluments payable for his work as councillor. He drew the Ombudsman’s attention to the fact that, even in such a scenario, he would not be deprived of his office. In his view, this cast doubt on the effectiveness of the obligation to submit the impugned declaration. Insofar as declarations were designed to curb corruption, it was illogical that a failure to submit such a declaration would not result in removal from office.
In his replies of 20 March, 8 May and 13 August 2003, the Ombudsman indicated that he was in receipt of voluminous correspondence drawing attention to various aspects of the transparency obligations imposed by the 2002 amendments to the 1998 Act. His correspondents argued that the scope of the obligation to make publicly available details pertaining to the financial situation of various local politicians and officials was too extensive and breached the right to respect for private and family life. In the light of the public reaction to those amendments, the Ombudsman was considering whether to ask the Constitutional Court to examine their compatibility with the Constitution.
Eventually, however, after analysing various provisions of the Act, the Ombudsman complained to the Constitutional Court only about those amendments to the 1998 Act which imposed a wide-ranging obligation on certain local politicians to submit declarations about various aspects of the business activities of their close and extended families, in particular insofar as these activities concerned companies owned or co-owned by local municipalities.
In a judgment of 13 July 2004, the Constitutional Court found certain of those provisions constitutional and declared others incompatible with the Constitution. However, it did not examine the obligation complained of in the present case, but only dealt with those obligations under the amended 1998 Act which related to the business activities of local politicians’ families.
The applicant does not wish to disclose details about his income and property as required by the 1998 Act as amended. He has not submitted a declaration as required. Consequently, he has received no emoluments for his work as a councillor since July 2003, these emoluments amounting to 1,190 zlotys (PLN) per month.
Article 61 of the Constitution reads:
Every citizen shall have the right to obtain information on the activities of public bodies and of persons discharging public functions. This right shall also include the receipt of information on the activities of self-governing economic or professional bodies and other persons or organisational units in connection with fields in which they perform public duties and manage communal assets or property belonging to the State Treasury.
The right to obtain information shall guarantee access to documents and entry to the sittings of collective public bodies which have been formed by universal suffrage and shall include the opportunity to make sound and visual recordings.
Limitations on the rights referred to in paragraphs 1 and 2 above may be imposed by statute solely in order to protect the freedoms and rights of other persons and economic subjects, public order, security or important economic interests of the State.
The procedure for the provision of information referred to in paragraphs 1 and 2 above shall be specified by statute and, as regards the Sejm and the Senate, by their rules of procedure.
Article 47 of the Constitution provides:
Everyone shall have the right to legal protection of his private and family life and of his honour and good reputation and the right to make decisions about his personal life.
Article 79 § 1 of the Constitution provides as follows:
“In accordance with principles to be specified by statute, everyone whose constitutional freedoms or rights have been infringed shall have the right to appeal to the Constitutional Court for a judgment on the conformity with the Constitution of a statute or other normative act on the basis of which a court or an administrative authority has issued a final decision concerning his freedoms or rights or on his obligations as set out in the Constitution.”
By a judgment of 23 June 1999 the Constitutional Court examined a request to examine the compatibility with the Constitution of the 1997 Act on Restrictions on Business Activity of Persons Carrying Out Public Functions (which was later replaced by the legislation complained of in the present case).
In this request the complainants argued that the provisions of the 1997 Act insofar as they prevented members of executive boards of local councils and various other officials of local administration from conducting business activities on their own account were incompatible with the Constitution. This was because, the complainants averred, they imposed undue restrictions on business freedom guaranteed by its Article 22 of the Constitution. It was also argued that these restrictions were in breach of the principle of equality guaranteed by its Article 32.
The Constitutional Court recalled the history of legislation intended to limit the scope of business freedom of persons engaged in various bodies of local government since the first such law was adopted in 1992. It reiterated that these laws were to curb possible corruption by making it impossible for certain categories of public officials to combine their public functions with business activity.
The Court further considered that the provisions complained of could not be said to breach the principle of equality as guaranteed by the Constitution. This principle meant that all persons having the same legally relevant characteristics were to be treated equally, without differences to their advantage or disadvantage. However, this principle accepted that different classes or groups of persons be treated differently (K17/95).
In this connection, it reiterated that the case-law of the Court regarding restrictions of business activity of persons holding public functions was already established in that it had repeatedly held that such persons had to expect that such restrictions would be imposed on them. It recalled that these restrictions were meant to prevent public officials from engaging in situations and dilemmas of such a nature as to be capable of not only casting doubt on their personal honesty and integrity, but also of undermining authority of the State’s bodies and of weakening the trust of the electorate and public opinion in their functioning (W 2/94).
The Court referred to its judgment given in 1995 in which it had stated that the legislature was empowered to impose various restrictions on local councillors in respect of their professional activities, provided that such limitations would be reasonably linked to public interest they were intended to serve and that the scope of such limitations remained proportionate to the importance of such public interest (K 29/95).
As regards the temporal scope of application of the 1997 Act, the Court noted the complainants’ argument that the introduction of that Act adversely the legal situation of the public officials concerned in that it had extended during their mandate the scope of limitations applicable to them. The Court considered that the prohibition on laws which harmed the position of individuals applied only to existing legal relationships within the area of civil, social insurance or administrative law. It could not be interpreted in such a way as to constitute a total ban on the introduction of new public law regulations which would be less advantageous for persons carrying out public functions during their mandate. It was of the view that such persons could not be considered as having any ‘acquired rights’ in respect of the conditions of their mandate that could be compared to such rights within the meaning of this term for the purposes of civil or social insurance law.
Under Article 25 (c) § 1 of the Local Government (County) Act of 5 June 1998 as amended in 2002, local councillors, members of local government executive boards, executive secretaries to county councils and members of governing boards of legal entities with legal personality, such as companies owned or co-owned by local municipalities, are to submit declarations on their financial situation and property portfolio, hereinafter referred to as “declarations”.
The declarations must cover their personal property and assets owned as marital property, and must list the following assets: savings and other liquid assets, all immovable property and shares and actions in public companies owned by both public-law and private-law persons. The declarations must also include information on property purchased by way of tender from any public-law entities and information about businesses owned or run by the persons obliged to submit declarations.
The obligation to submit a declaration also covers information on income earned in the context of paid employment or any other income-generating professional or business activity. Further, information on all movable property exceeding PLN 10,000 in value is to be included. Information on all loans of over PLN 10,000 taken out by the individual concerned and the conditions under which these loans were granted is to be disclosed.
Pursuant to Article 25 (c) § 5 of the Act, the declaration must be submitted within thirty days of the date on which a councillor makes a solemn oath to perform his or her duties honourably. Councillors’ declarations are to be submitted to the President of the County Council.
Declarations are to be submitted for each calendar year until 30 April of the following year at the latest, and also two months prior to the end of a councillor’s term of office.
The declaration is to be accompanied by a copy of the annual income-tax declaration for the relevant year.
Declarations are to be submitted on a standardised form, provided in the Ordinance issued by the Prime Minister on 26 February 2003.
The president of the local council is empowered to examine the declaration submitted by councillors and is obliged to transmit a copy to the local tax office.
A copy of the declaration is to be kept for six years in the local council’s public records.
Under Article 25 (c) § 8, the local tax office is empowered to examine whether the declaration is compatible with the councillor’s income-tax declaration for the relevant year. Where doubts arise as to its veracity, the president of the local council or the tax office may request the local tax inspectorate to institute a tax audit procedure in respect of the councillor.
Pursuant to Article 25 (c) § 12, the president of the council is obliged to submit a report to the council by 30 October each year, listing those councillors who have failed to submit declarations. This report should include information about any irregularities discerned in the declarations and about any measures taken in connection with these irregularities, such as those provided for in section 25 (c) § 8 of the Act.
Under Article 25 (d), the information contained in the declaration is to be made public, with the exception of councillors’ home addresses and the address of other real estate that they own.
Pursuant to Article 25 (f), a councillor who fails to submit a declaration will not be paid his or her monthly emoluments until such time as a declaration is duly submitted.
Electronic copies of all submitted declarations are accessible to the general public through the Public Information Bulletin, as provided for in the 2001 Access to Information Act.
Pursuant to Article 8 of the Access to Information Act, a Public Information Bulletin has been created. It is an official publication and is accessible to the general public via the Internet. The Minister of Public Administration is responsible for its creation and functioning. He or she is also responsible for ensuring that all public-law entities which are legally so obliged submit any information which is to be made public and that the Bulletin’s home-page contains links enabling visitors to access all such information.


ITEMID: 001-101514
LANGUAGEISOCODE: ENG
RESPONDENT: EST
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF TARKOEV AND OTHERS v. ESTONIA
IMPORTANCE: 3
CONCLUSION: No violation of Art. 14+P1-1;Remainder inadmissible
JUDGES: Ganna Yudkivska;Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 7. The applicants, forty-five Russian military pensioners whose names along with other relevant information are listed below (Annex), live in Estonia.
8. On 26 July 1994, at the same time as the conclusion of a treaty on the withdrawal of Russian troops from Estonian territory, Estonia and the Russian Federation signed an agreement concerning the provision of social security guarantees to the retired military personnel of the armed forces of the Russian Federation on the territory of Estonia (“the Agreement”). The Agreement provided that retired military personnel, that is − persons discharged from army service and receiving pensions, could apply for residence permits in Estonia. The Russian Federation undertook the securing of the payment of pensions to the persons concerned according to Russian legislation. Furthermore, it was stipulated that the retired military personnel could also apply for an Estonian pension, in which case the payment of their Russian pension would be suspended while they were receiving an Estonian pension, and vice versa.
9. Until 1998 the Russian military pension was, in most cases, considerably higher than the Estonian old-age pension. Then, after the change in the economic situation and amendment of the pension law, the Russian military retirees faced the situation where they could choose to receive either a Russian military pension (smaller than the average old-age pension in Estonia) or an Estonian old-age pension for fewer years of service. In the latter case, only the years of pensionable employment in the civil sphere – and not the years of service in the Russian (Soviet) armed forces – were taken into account. According to the applicants, in both cases the sums were rather small and not enough for survival in Estonia.
10. From January 2006 many military retirees, including the applicants, who had worked in Estonia in the civil sphere and fulfilled the requirements (in particular, at least fifteen years of pensionable employment in Estonia) for receiving an Estonian old-age pension, applied for and were granted, such a pension for life. However, a few months later, after a regular exchange of information between the Estonian social insurance authorities and the Russian Embassy, the Estonian authorities realised that the Russian Embassy was continuing to pay the persons concerned Russian military pensions. The Estonian authorities then suspended the payment of the Estonian pension to the persons concerned and requested that they provide confirmation of the suspension of payment of the Russian military pension if they wished that the payment of the Estonian pension be resumed.
11. According to the Government, who referred to information published in the Russian-speaking press, the average military pension paid by the Russian Federation in 2008 was, depending on the person's military rank, 7,400, 5,800 or 5,000 kroons (EEK) a month (corresponding to approximately 473, 371 or 320 euros (EUR), respectively). At the same time, the average old-age pension in Estonia was EEK 4,356 (EUR 278). Although the pensions paid by Estonia had increased since 1994, the Russian military pension was higher than the average Estonian old-age pension and definitely higher than the minimum pension established in Estonia (EEK 2,008.80 (EUR 128) in 2009) which they had been guaranteed under Article 3 of the Agreement.
According to the applicants, who relied on the information from the Russian Embassy in Tallinn, the average pension of a Russian military pensioner in Estonia in 2008 was EEK 3,817 (EUR 244) − which was much less than the average Estonian pension at the same time.
12. The applicants challenged the decisions of the Estonian social security authorities to suspend the payment of the Estonian old-age pension (in the case of Mr V. Gladõšev – invalidity pension). Arguing that they had been discriminated against and that their property rights had been violated, they lodged complaints with the competent administrative courts against the individual decisions of the Estonian social security authorities. They requested that the courts order the social security authorities to resume payment of the pension. Their complaints were dismissed in separate administrative court proceedings by the administrative courts and courts of appeal. In the case of all of the applicants, with the exception of Mr V. Gladõšev, the Supreme Court dismissed the appeals as manifestly illfounded. Mr V. Gladõšev's appeal was refused by the Supreme Court because of his failure to pay the court fee of EEK 400 (EUR 26). The Supreme Court examined his request for exemption and rejected it by a reasoned decision.
13. The reasoning underlying the individual decisions of the social security authorities as well as the complaints and judgments in respect of each of the applicants were similar and can be summarised as follows.
14. The courts found that the clear and unequivocal wording of Article 5 of the Agreement provided that only one of the States (not both States simultaneously), should pay a pension to the military retirees. Simultaneous payment of the Russian military pension and the Estonian old-age pension was excluded because the State Pension Insurance Act (Riikliku pensionikindlustuse seadus) provided that if an international agreement entered into by the Republic of Estonia contained provisions which differed from the provisions of this Act for the grant or payment of pensions, the international agreement applied (section 4(3)). By way of comparison, the courts noted that the State Pension Insurance Act generally provided that persons who had the right to receive several state pensions were granted one state pension of their choice. The same applied to members of the Estonian Defence Forces even if they qualified for an old-age pension and defence forces pension simultaneously (section 196(5) of the Defence Forces Service Act (Kaitseväeteenistuse seadus)).
15. The courts did not exclude the possibility that there were people living in Estonia who were receiving military pensions from a foreign country and, at the same time, a state pension from Estonia. Nevertheless, they found that the Russian military retirees had not been discriminated against, as their situation was not comparable to that of persons who had served in the armies of States which were members of the same international organisations as Estonia, such as NATO or the European Union. The courts pointed out that the relationship of Estonia with those countries had been established on a different basis.
16. The courts dismissed the argument concerning an alleged violation of the applicants' legitimate expectation, noting that they could have no legitimate expectation of receiving two pensions simultaneously, as the Agreement provided that a person could not receive two pensions at the same time.
17. The courts also rejected the applicants' allegation that their property rights had been violated, finding that, as they were continuing to receive their Russian military pension, the applicants did not meet the conditions required for receiving the Estonian pension and that therefore they had no property rights within the meaning of Article 32 of the Estonian Constitution or Article 1 of Protocol No. 1 to the Convention. The courts emphasised in this context that the applicants had the right to opt for an Estonian pension instead of the Russian one at any moment they wished.
18. The courts found that the essence of the applicants' pension rights had not been undermined, as they had been guaranteed an income sufficient for subsistence. They noted that, according to Article 3 of the Agreement, the applicants received a pension at least equal in value to the amount of the minimum pension in Estonia.
19. Finally, the courts noted that the States which were parties to the Agreement could amend the Agreement so that each of them undertook to pay pensions according to the pensionable years of work in the respective country. However, this was a matter of political will; the actual Agreement did not foresee such a possibility and there were no grounds for not applying the Agreement.
20. The State Pension Insurance Act (Riikliku pensionikindlustuse seadus), as in force at the material time, provided:
“(1) Under the conditions provided for in this Act, state pensions shall be granted and paid to:
1) permanent residents of Estonia;
2) aliens residing in Estonia on the basis of temporary residence permits or a temporary right of residence.
...
(2) A state pension shall be granted pursuant to this Act unless a person receives a state pension pursuant to other Estonian Acts.
(3) If an international agreement entered into by the Republic of Estonia contains provisions which differ from the provisions of this Act for the grant or payment of pensions, the international agreement applies.”
“Persons who have the right to receive several state pensions shall be granted one state pension of their choice ...”
“(1) The following persons have the right to receive an old-age pension:
1) persons who have reached sixty-three years of age and
2) whose pension-qualifying period as provided for in section 27 of this Act and spent in Estonia is fifteen years.
...”
“(1) An old-age pension consists of three components:
1) the basic amount (baasosa);
2) a component calculated on the basis of years of pensionable service (staažiosak), the amount of which equals the number of years of pensionable service (pensioniõiguslik staaž) (section 28) multiplied by the financial value of a year of pensionable service;
3) an insurance component (kindlustusosak), the amount of which equals the sum of the annual factors of an insured person (section 12) multiplied by the financial value of a year of pensionable service.
...”
“(1) A pension-qualifying period (pensionistaaž) is a period during which an insured person is engaged in an activity which merits the right to receive a state pension.
(2) A pension qualifying period shall be divided as follows:
1) the years of pensionable service (pensioniõiguslik staaž), which is calculated up to 31 December 1998;
2) the accumulation period (pensionikindlustusstaaž), which is calculated from 1 January 1999.
...”
“(1) Time during which the employer of a person is required to pay social tax for the person shall be included in the years of pensionable service (pensioniõiguslik staaž) of the person.
...”
21. The relevant provisions of the Agreement concerning social guarantees to retired military personnel of the armed forces of the Russian Federation on the territory of Estonia, agreed between Estonia and the Russian Federation on 26 July 1994, provide as follows:
“The Russian Federation shall secure pensions for military retirees on the territory of the Republic of Estonia regardless of their nationality, on the conditions and according to the norms established by the legislation of the Russian Federation. The pension shall be paid at least in the amount of the minimum pension in the Republic of Estonia, including compensation.
...”
“The authorities of the Republic of Estonia may establish and pay at the cost of the Republic of Estonia pensions to military retirees who have a right to a pension under the laws of the Republic of Estonia, subject to the wishes of those military retirees.
In this case the payment of the pension that had earlier been established by the Russian Federation shall be suspended for the period of payment of pensions by the authorities of the Republic of Estonia, and vice versa.”
22. A cooperation agreement on exchange of information on the enforcement of Article 5 of the Agreement was signed by the Estonian Social Insurance Board (Sotsiaalkindlustusamet) and the Social Department of the Embassy of the Russian Federation in Estonia on 7 July 2004. A new agreement concerning the same matter was signed on 20 February 2007.
23. In the meantime, on 25 June 1993, Estonia and the Russian Federation signed a general pension agreement which was amended by a protocol signed on 5 November 2002. That agreement and its protocol entered into force on 16 October 2007. These instruments provide that, as a rule, a person receives pension from his or her country of residence on the basis of that country's legislation. Military pensioners, subject to the Agreement, do not fall under the general pension agreement.
24. The Government informed the Court that Estonia and the Russian Federation were holding negotiations to sign a new general pension agreement instead of the current one which was due to expire in 2011. According to its draft, each country would pay pension for the years of pensionable employment accumulated on its territory. That principle would also apply to the military pensioners instead of Article 5 of the Agreement.
25. In a judgment of 28 April 2008 (case no. 3-3-1-1-08) the Administrative Law Chamber of the Supreme Court dealt with a case similar to that of the applicants. The Supreme Court quashed the lower court's judgment on procedural grounds and therefore did not rule on the merits of the case. Nevertheless, it pronounced its opinion on some aspects of the matter.
The Supreme Court considered that the so-called military pension paid under the Agreement was not a state pension and that therefore section 6 of the State Pension Insurance Act was not applicable. It pointed out that pursuant to section 4(3) of the Act, if an international agreement signed by Estonia contained provisions which differed from the provisions of that Act, the international agreement took precedence.
The Supreme Court found that pursuant to Article 5 of the Agreement it was not possible to simultaneously pay a pension for service in the Soviet armed forces and for a subsequent period of employment in Estonia. According to the Estonian Ministry of Foreign Affairs which was invited to participate in the proceedings, this had been the understanding of the parties to the Agreement since its signing. However, the parties were aware of the problem and since 2002 the Russian party had taken the initiative to resolve it. The Estonian Ministry of Foreign Affairs admitted that both the general approach and the factual circumstances had changed since the signing of the Agreement. In drawing up recent pension agreements the principle of adding up different (not overlapping) periods was also applied; this approach was used in the European Union as well. It was also noted that the Estonian and Russian parties were preparing a new pension agreement presumably also to address the issue of the military pensioners.
The Supreme Court referred the case to the Tallinn Court of Appeal which, in a judgment of 4 September 2008 (case no. 3-06-2305), dismissed the appeal. It held:
“18. ... In the Court of Appeal's opinion, Article 5 § 2 of the Agreement is justified, on the one hand, by the State's obligation and need to economically use of the state budget. On the other hand, in assessing Article 5 § 2 of the Agreement, the context of the conclusion of the Agreement has to be taken into account, in particular [its] relation to the [treaty on the withdrawal of Russian troops from the Estonian territory] that was concluded at the same time. The purpose of these “July agreements” was the withdrawal from Estonia of the armed forces of the country that had occupied Estonia. As a compromise between the countries, military pensioners who did not pose a threat to Estonian national security were granted the right to stay in Estonia. In return, the Russian Federation assumed an obligation to secure for the military pensioners staying in Estonia under the Agreement, a pension from the Russian Federation that would ensure their subsistence. When entering into the Agreement, Estonia had the right to avoid taking excessive risks with its state budget in connection with the remaining of the military pensioners in Estonia.
As the complainant is and was an Estonian national, his right to stay in Estonia was guaranteed regardless of the Agreement; however, [his] nationality alone does not provide him with any wider social guarantees as compared to other military pensioners of the [Soviet Union]. The Russian Federation undertook to provide a pension to the complainant as well, regardless of his nationality (Article 3 of the Agreement).
19. The complainant as a subject falling under the Agreement signed with the Russian Federation is not in the same position as the military pensioners who have served in the armies of those countries which belong to the same international organisations as Estonia such as NATO or the European Union.
...
22. On the basis of the above, the Court of Appeal considers that Article 5 § 2 of the Agreement was in conformity with the Constitution at the time of its signing and ratification.
23. Article 5 § 2 of the Agreement, in order to be applicable in the present case, also had to conform with the Constitution at the time when the disputed administrative decision was taken. A provision of an international agreement can become unconstitutional after its ratification when the provision depriving a person of a right has in the meantime become unreasonable because of changed circumstances, and a reasonable time for amending the agreement or resolution of the matter at the domestic level has elapsed.
24. The Ministry of Foreign Affairs has acknowledged that the conceptual bases of the international pension agreements had changed in the meantime. In the opinion of the Court of Appeal this gives no ground to argue that Article 5 § 2 of the Agreement has already by now become unconstitutional. The conceptual bases of international pension agreements do not amount to constitutional principles. The development of international social insurance law is a long-term process wherein Estonia also needs to be given considerable time to find the best legal and political solutions. The material referred to in the Supreme Court's judgment in the present case confirms that the parties to the Agreement are engaged with the question concerning the pensions of the military pensioners of the former [Soviet Union].
25. Nor can the Court of Appeal see that Article 5 § 2 of the Agreement has violated or currently violates any international obligations.”
On 5 November 2008 the Supreme Court declined to hear an appeal against the Court of Appeal's judgment.
26. In a judgment of 13 June 2008 (case no. 3-3-1-31-08) the Administrative Law Chamber of the Supreme Court dealt with a case where the main issue was whether the complainant in that case was covered by the provisions of the Agreement. It was also required to interpret Article 5 of the Agreement. Referring to its judgment of 28 April 2008 (see paragraph 25 above), the Supreme Court reaffirmed that, based on the grammatical interpretation of Article 5 and, above all, the common will and understanding of the parties to the Agreement in respect of the interpretation and application of this provision, its current wording and the will of the parties only provided for the possibility of receiving a pension granted by one of the countries at a time.
NON_VIOLATED_ARTICLES: 14
P1
NON_VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-110305
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF LAGARDÈRE v. FRANCE [Extracts]
IMPORTANCE: 3
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Equality of arms);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-2 - Presumption of innocence);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: André Potocki;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger
TEXT: 5. The applicant was born in 1961 and lives in Paris.
6. The applicant’s father, J.-L. Lagardère, was chairman and managing director of the Matra and Hachette companies.
7. On 29 December 1992 Lambda, a company representing certain shareholders in Matra and Hachette, lodged a complaint for misappropriation of corporate assets, together with an application to join the proceedings as a civil party.
8. By an order of 21 June 1999, J.-L. Lagardère was sent before the Paris Criminal Court on suspicion of having, between 1988 and 1992, as chairman and managing director of Matra and Hachette in Paris, knowingly fraudulently misused assets of those companies against their interest, in particular by letting them bear the full cost of an annual licence fee equal to 0.2% of the two companies’ turnover, only part of which was justified, for his personal gain or to help another company in which he had a direct or indirect interest.
9. Two agreements were signed for the purpose: one on 1 October 1988, between Matra and the Arjil Group, and the other on 1 November 1988, between Hachette and the Arjil Group. They were adopted by the general assemblies of Hachette and Matra on 20 June 1989 and 26 June 1989 respectively.
10. In a judgment of 22 June 2000 the Paris Criminal Court declared the prosecution against J.-L. Lagardère time-barred, the starting point for the purposes of limitation being fixed at 20 and 26 June 1989, the dates of signature of the agreements by the shareholders. As a result, the court declared the civil party action brought by Lambda inadmissible.
11. On 22 and 28 June 2000 Lambda and the public prosecutor at the Paris tribunal de grande instance appealed.
12. In a judgment of 25 January 2002 the Paris Court of Appeal confirmed the judgment in all its provisions. Lambda appealed on points of law.
13. On 14 March 2003 J.-L. Lagardère died.
14. In a judgment of 8 October 2003, after declaring that the prosecution had lapsed, this time as a result of the accused’s death, the Criminal Division of the Court of Cassation quashed and annulled the judgment of the Paris Court of Appeal concerning the civil action, considering that the moment at which time had started to run for the purposes of limitation was the presentation of the auditors’ special report to the general assemblies, which post-dated the signature of the disputed agreements. The case was sent before the Versailles Court of Appeal.
15. Jean-Luc Lagardère’s heirs, his widow E.P.L. and the applicant, challenged that court’s competence to judge the civil action.
16. In a judgment of 30 June 2005 the Versailles Court of Appeal dismissed that objection, considering that the civil action continued when the offender’s death occurred after a decision on the criminal prosecution had been given.
17. It declared the instances of misappropriation of corporate assets committed in 1988 time-barred, but not those committed in the financial years 1989 to 1992.
18. The court accordingly considered that it had first to determine whether the constituent elements of the offence of misappropriation of corporate assets were established in respect of Arnaud Lagardère’s late father. To do this it examined “the personal interest” in the signature and execution of the contracts in issue, “whether they were against the corporate interests of Matra and Hachette”, and whether J.-L. Lagardère had acted in “bad faith”. It concluded its reasoning in the following terms:
“the system set in place ... at the request of Mr [J.-L.] Lagardère ... constitutes the offence of misappropriation of corporate assets to the detriment of Matra and Hachette.”
19. The Court of Appeal explained that the profit had been 94,100,000 French francs (FRF), or 14,345,452.52 euros (EUR), without any real added value for the injured companies.
20. In the operative part of its judgment the Court of Appeal held:
“that the constituent elements of the offence of misappropriation of corporate assets to the detriment Matra and Hachette are established for that period against Mr Jean-Luc Lagardère.”
21. In view of that finding the Court of Appeal ordered E.P.L. and the applicant, as the heirs, to pay the civil party EUR 14,345,452.52 in damages.
22. The applicant, E.P.L., Lambda and the Principal Public Prosecutor at the Court of Appeal appealed on points of law. In support of his appeal the applicant argued that there had been a violation of Article 6 of the Convention because the criminal court had no authority to judge the matter after his father’s death.
23. In his opinion on the appeal the advocate-general at the Court of Cassation, having examined the different possible solutions and the relevant legal theory and case-law, concluded that the Versailles Court of Appeal had no authority to judge the civil action after J.-L. Lagardère’s death. He also justified his opinion on principle. First, he pointed out that whatever the place reserved for the victim in the criminal trial, the judgment of the civil action remained contingent on the outcome of the criminal proceedings as it required the prior demonstration of the existence of an offence of which a particular individual was guilty, which ruled out the possibility of continuing the action against the heirs. He cited a passage from an authoritative work (Précis de procédure pénale, by Professors Stefani, Levasseur and Bouloc, 19th edition): “in our modern law we no longer bring actions against the dead or the memory of the dead”. Next, he explained that the need for a violation of the criminal law which was inherent in any decision of the criminal courts justified the fact that, for the court even to rule only on the civil action, the accused had to be given a criminal trial that respected the “principle that hearings must be oral ... and the adversarial nature of the trial, which was an essential component of a fair trial. In other words, in order for the criminal court to be able to rule, in both the criminal and the civil proceedings, there is a condition: the effective participation of the accused in his trial”. This meant that in order for the criminal court to be able to examine the civil action alone, it would be necessary for the accused “at one time or another, to have had an effective opportunity to submit his arguments in full concerning the presence and the solidity of all the constituent elements of the offence with which he has been charged, and his responsibility in the matter”.
24. In a judgment of 25 October 2006 the Court of Cassation declared the Principal Public Prosecutor’s appeal inadmissible and rejected those lodged by the applicant and E.P.L.
25. Regarding the arguments submitted by the applicant, the judgment read as follows:
“In overruling the objection that the criminal court had no authority to hear the civil action brought by the heirs of [J.-L. Lagardère] because no decision had been given on the merits in the criminal proceedings prior to the death of the accused, the judgment states, among other things, that the proceedings and the judgment found that the prosecution was time-barred before the accused died; furthermore, the criminal court to which the case was remitted by the Court of Cassation is the only court competent to determine whether the prosecution was time-barred and whether, having regard to the civil claim, the constituent elements of the offence of misappropriation of corporate assets have been made out;
In pronouncing itself in those terms the Court of Appeal justified its decision;
Trial courts before which action was lawfully taken before the criminal prosecution lapsed continue to have jurisdiction in the civil proceedings...”
26. Ruling on the civil party claim, it quashed and annulled the judgment of the Court of Appeal solely on the issue of the capitalisation of the interest on the sums owed by J.-L. Lagardère’s heirs. On that occasion it noted that the Court of Appeal had “found JeanLuc Lagardère guilty”.
27. The relevant provisions of the Code of Criminal Procedure read as follows:
“Anyone who has personally suffered damage directly caused by a criminal offence may bring civil-party proceedings to seek compensation for such damage. ...”
“Civil-party proceedings may be conducted simultaneously with the public prosecution and before the same court.
Civil-party proceedings may be brought for any head of damage, whether pecuniary or physical or non-pecuniary, caused by the acts under prosecution”
“Civil-party proceedings may also be conducted separately from the public prosecution, before a civil court.
However, judgment in civil-party proceedings brought in a civil court shall be suspended until final judgment has been given in any public prosecution.
Setting the public prosecution in motion does not suspend the other actions before the civil court, whatever their nature, even if the decision to bring criminal proceedings is likely to directly or indirectly influence the outcome of the civil proceedings.”
“A party who has brought proceedings in a civil court may not refer the same complaint to a criminal court unless the prosecution has preferred charges in that court before the civil court has ruled on the merits.”
“The public prosecution for the imposition of a penalty is extinguished by the death of the defendant or by limitation, amnesty, the repeal of the criminal law and res judicata.”
“When civil action is taken before a criminal court, limitation is governed by the rules of public prosecution. When the action is taken before a civil court, limitation is governed by the Civil Code.
When the court has made a ruling on the public prosecution, the investigative measures ordered by the criminal court on the civil claims alone are governed by the rules of civil procedure.”
28. When criminal and civil proceedings are brought simultaneously before the criminal court, the civil action is considered contingent on the outcome of the criminal prosecution (see, for example, Court of Cassation, Criminal Division, 19 May 1969, Bull. crim. no. 173).
29. The public prosecution is extinguished by the death of the accused during the appeal on points of law. When the Investigations Division of the Court of Appeal decides to discontinue the proceedings, the criminal courts can no longer rule on the criminal proceedings and therefore have no authority to examine the civil action (Court of Cassation, Criminal Division, 5 May 1998, Bull. crim. no. 149). If the accused dies before any decision is reached on the merits, the criminal court has no authority to examine the civil action (Court of Cassation, Criminal Division, 7 March 1936; 9 September 2008, Bull. crim. no. 177).
30. The criminal courts can rule on the civil action only where a decision has been reached in the criminal proceedings (Court of Cassation, Criminal Division, 9 September 2008, Bull. crim. no. 177). In that case, when death occurs during the appeal or the appeal on points of law, the public prosecution is extinguished but the Court of Appeal and the Court of Cassation can still examine the civil claims (Court of Cassation, Criminal Division, 18 February 1915; 29 May 1978, Bull. crim. no. 169; 13 March 1997, Bull. crim. no. 104; 15 June 1977, Bull. crim. no. 221; 8 April 1991, Bull. crim. no. 166; 13 March 1995, Bull. crim. no 100; 22 May 1995, Bull. crim. no. 181). The Court of Appeal remains competent if death occurs after cassation but before the accused is summoned to appear before the court to which the case has been remitted (Court of Cassation, Criminal Division, 3 February 1965, Bull. crim. no. 32). The Court of Cassation must examine the grounds of appeal concerning both the civil action and the criminal prosecution, the latter serving as the basis for the former (Court of Cassation, Criminal Division, 13 March 1995, Bull. crim. no. 100).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
6-2


ITEMID: 001-81432
LANGUAGEISOCODE: ENG
RESPONDENT: ISL
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF SARA LIND EGGERTSDÓTTIR v. ICELAND
IMPORTANCE: 2
CONCLUSION: Violation of Art. 6-1;Damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: David Thór Björgvinsson
TEXT: 5. The applicant, Sara Lind Eggertsdóttir, is an Icelandic national who lives in Reykjavík.
6. On 5 March 1998 the applicant was born at the National and University Hospital (hereinafter referred to as the NUH) in Reykjavík, which was a State hospital. Soon after her birth it became clear that she was severely handicapped both physically and mentally. Her disability is assessed at 100%.
7. In July 1998 the applicant's parents complained to the Medical Director of Iceland, who in October 1999 concluded that the child had not been given improper treatment.
8. The applicant's parents, who were represented by a lawyer, then brought proceedings on her behalf against the State of Iceland in the Reykjavik District Court. Their arguments can be described as twofold. Firstly, a mistake had been committed in the delivery room in that the doctors had reacted too late to hypoxia despite its having been diagnosed directly on the mother's arrival there. Secondly, paediatricians had made a mistake when attending to the child immediately after birth. The parents alleged that a catheter inserted into the child's umbilical artery had been abnormally bent to a U-shape and left that way for approximately 32 hours. This had been capable of causing the damage that had occurred to the child's health. Instead the doctors should have partially withdrawn the catheter until it straightened out or, if that was not possible, inserted it into a limb.
9. The respondent requested the District Court to dismiss the applicant's claim, maintaining that the damage she had suffered to her health was a result of hypoxia during pregnancy, before the mother's arrival at the labour ward of the NUH, and that no additional damage could be linked to any possible mistakes on the part of hospital staff. The applicant was already in a serious condition when delivery was performed by caesarean section, by which time hypoxia had already caused arterial thrombosis. The position of the catheter had therefore not caused the damage to the applicant's health.
10. The District Court, sitting with one professional judge and two lay judges, one of whom was a paediatrician and the other a gynaecologist and obstetrician, heard extensive evidence from all the hospital personnel involved and from experts.
11. By a judgment of 24 April 2002, the District Court rejected the first claim described above but upheld the second claim and found the State liable to pay compensation to the applicant. It awarded her 28,522,474 Icelandic Crowns (ISK) in compensation (ISK 20,684,948 for pecuniary damage and ISK 7,756,856 for non-pecuniary damage), plus interest, as well as certain sums for legal costs, to be held by her parents on her behalf. Its reasoning on the merits included the following passages:
“By reference to the foregoing the court concludes that proof has not been adduced to show that the plaintiff's disability was solely due to her illness following thrombosis of the aorta and the renal arteries. On the other hand, there is a significant probability that her illness following the said thrombosis at least contributed to the serious brain damage she suffered, which caused her disability and non-financial loss. Whether the plaintiff had already suffered brain damage, and the extent to which her illness may have added to that damage, is impossible to ascertain.
In view of the plaintiff's difficult situation as regards proof and of the rules of evidence that must be regarded as having been formed in this field of the law of compensation, the onus must be on the defendant to prove that the brain damage from which the plaintiff now suffers would have occurred even if the defendant's employees had not made the mistake of letting the catheter remain in a U-shape in her aorta for up to 32 hours. As the defendant must, in the light of the foregoing, be considered not to have succeeded in adducing such proof, the court accepts the plaintiff's view that the conditions that would render the defendant liable to pay compensation on account of her disability and non-financial loss are fulfilled.
It is not possible on the basis of the available evidence and the above rule of evidence to endorse the defendant's view that only a small part of the disability can be traced to her illness caused by thrombosis of the aorta and the renal arteries. As it has not been demonstrated whether or to what extent the damage to the plaintiff's health was due to other causes, the defendant is deemed liable for her entire loss.”
12. The Solicitor General appealed against the above judgment to the Supreme Court. In support thereof, he filed two statements by certain named doctors of the University Hospital commenting on the District Court's judgment and criticising its conclusion. The statements had been addressed to the Hospital's Chief Medical Executive, who apparently had endorsed them and forwarded them to the Solicitor General.
13. The Supreme Court initially scheduled the oral hearing for 24 January 2003, but on 21 January 2003 informed the applicant's lawyer and the Solicitor General that it had adjourned the hearing pending an opinion it intended to request from the State Medico-Legal Board (SMLB). On this occasion the Supreme Court gave the parties an opportunity to indicate the questions they would like to be put to the SMLB.
14. In reply, by a letter of 24 January 2003, the applicant's lawyer protested, in particular, against the Supreme Court's decision to seek the SMLB's opinion without having first offered the parties an opportunity to express their views on the measure. It was noted that, pursuant to section 1 of the State Medico-Legal Board Act, many doctors associated with the NUH, where the disputed medical services had been provided, had a seat on the Board. Moreover, the Medical Director had already expressed his views on the matter and was therefore disqualified from any further involvement. The lawyer also protested against any consideration of the matter by the hospital's employees, and demanded their withdrawal.
In the event that the Supreme Court were to decide, despite the applicant's protest, to proceed to ask the SMLB for an opinion, the applicant's lawyer specified 11 items for questions that he wished to be put to the SMLB.
15. The Supreme Court replied on 30 January 2003 that it found no reason not to ask for the SMLB's opinion but that it would consider the applicant's proposal regarding the questions.
16. On 31 January 2003 the Solicitor General indicated 13 questions which he thought should be put to the SMLB, but did not comment on the appropriateness of asking the SMLB for an opinion.
17. On 12 February 2003 the Supreme Court formally decided to obtain an opinion from the SMLB on 19 questions relating to the matter in dispute, giving the following reasons:
“It was difficult to ascertain from the evidence and testimonies submitted what the cause of the [applicant's] injury was, added to which some points were not as clear as would have been desirable. It was therefore deemed proper, before the case were tried by the Supreme Court, to obtain the opinion of the State Medico-Legal Board under section 2(1) and (2) of the SMLB Act and to seek answers on certain points since, according to the said Act, it is the SMLB's role to provide the courts with opinions on medical matters.”
In connection with the above the Supreme Court drew particular attention to the applicant's request of 24 January 2003 for the withdrawal of certain members.
18. The SMLB was composed of the Director of Health (Landlæknir) of Iceland, as chair, and eight other members.
19. The SMLB delivered its opinion on 21 November 2003. It found that at the maternity ward an abnormal foetal monitor printout had been reacted to belatedly. On the other hand, there was no reason to criticise the child's treatment at the paediatric clinic following birth. The Board considered that the positioning of the catheter had not caused blood coagulation and that no mistake had been made concerning the manner in which it was placed. Thus, the Board differed from the District Court on points that were material for establishing liability to pay compensation.
20. In the context of the Board's own procedure, the matter had first been referred direct to its Forensic Chamber composed of three Board members, all of whom were employees at the University Hospital and decided that they were not disqualified. The Forensic Chamber had sought two opinions on the applicant's birth, one – by a consultant surgeon and member of the Board – on the child's case history after birth, and the other by an external obstetrician on the mother's pregnancy and the child's birth.
21. At a meeting held on 18 November 2003, the SMLB had discussed and unanimously approved the two doctors' opinions and adopted its final opinion that was transmitted to the Supreme Court. The session had been presided over by one of the Forensic Chamber's three members, who had replaced the SMLB's Chair who had withdrawn on account of his previous involvement with the case as the Medical Director of Iceland.
22. At the oral hearing on 27 February 2004 before the Supreme Court, the applicant's lawyer complained of the procedure before the SMLB, but to no avail.
23. By a judgment of 11 March 2004 the Supreme Court overturned the District Court's finding that the State was liable to pay compensation to the applicant for negligence by the University Hospital.
24. Before turning to the merits, the Supreme Court dealt with the issue of disqualification:
“As regards the conclusion of the SMLB and its Forensic Chamber, the respondent [the applicant] observes that doctors employed at the National and University Hospital took part in handling the matter and bringing it to a conclusion; that they, as employees of the appellant, were disqualified from doing so, and that consequently the SMLB's opinion was to be entirely disregarded.
As noted above, it is the role of the SMLB to provide the courts with opinions on medical matters. The situation in Iceland is such that most experts in the field of medical science are employed at the National and University Hospital. Of the SMLB's nine members four are employed at the hospital, but none of the members taking part in this matter is employed at the department of obstetrics and gynaecology, nor at the Barnaspítali Hringsins paediatric hospital, and none was involved with the treatment of the respondent's illness, or of her mother. Furthermore, none of them is a member of the hospital's highest management, which has taken a stand with respect to this matter in conformity with the opinion of the doctors of the departments of obstetrics and neonatology. It has not been demonstrated that the Board's handling of the case was contrary to the SMLB Act and Regulation no. 192/1942 on the Procedure of the SMLB, or that the Board's resolution was influenced by any extraneous considerations. The Board's opinion and all other opinions provided in this case will have to be assessed in the light of the positions occupied by those who provide them.”
25. As to the merits, the Supreme Court concluded:
“It is generally acknowledged that the use of arterial catheters may entail a danger of thrombosis. The respondent was dangerously ill and had been placed in a respirator, which demanded a monitoring of blood oxygen and acid/base levels and blood pressure, and the administration of fluids and drugs. The situation in which the doctors found themselves when they decided to leave the catheter alone must be kept in mind; as noted above, this provided the only arterial access, as matters had developed. It has not been established that a catheter lying in a loop entails an increased risk of thrombosis.
As explained above, the experts consider that the respondent's brain damage was first and foremost due to hypoxia. The damage revealed by examinations of her brain is consistent with hypoxia, and it must be regarded as highly likely that this was the cause of her loss. Brain damage that might have followed thrombosis in the fifth day after the respondent's birth would on the other hand have appeared as haemorrhage due to hypertension, but such brain damage is not extensive. It is not, therefore, possible to say that there is a causal relationship between the positioning of the catheter and the respondent's brain damage. It has not been demonstrated that the respondent's loss is traceable to a fault on the part of the appellant's employees.”
26. The respondent Government drew particular attention to the following provisions of the Code of Civil Procedure, no. 91/1991:
Article 44
“The judge shall in each case determine, by an assessment of the evidence adduced, whether an assertion relating to the facts at issue shall be regarded as proven, subject to any binding rules in this respect which may be expressly laid down by statute.”
Article 46
“The parties shall collect evidence in so far as they are able to determine the subject matter of the action. The judge may, as he may consider necessary for purposes of clarification, invite the parties to collect evidence relating to particular facts of the case. If the judge deems that a fact, which a party desires to establish, is obviously irrelevant or that such evidence does not serve a purpose, he may prevent the party from adducing such evidence.”
Article 104
“If the judge discovers, after he has received a case for adjudication, that the submissions of a party or the information on the facts provided by a party is seriously lacking in clarity, and the deficiency can be regarded as being due to the judge not having provided the parties with adequate guidance or made his observations known to them, he shall summon the parties to appear in court and, as the case may be, question them or draw their attention to the need for further evidence. The proceedings may be deferred as necessary; finally, the judge shall provide the parties with an opportunity to make observations supplementing their previous oral argumentation, and receive the case for adjudication anew.”
Article 111
“The judge shall not, in his judgment or decision, grant any remedy that goes beyond that sought by the parties, except on points he raises on his own initiative. Any claim that has not been made in the summons shall be dismissed by the court, unless the defendant has agreed that the judge may consider it. The same shall apply to any increase in a monetary claim or any other changes to the defendant's detriment.
The judge may not base his decision on a statement of facts or an objection which was not made during the proceedings, when it could have been. The judge shall assess, in the light of the circumstances, to what extent account should be taken of a fact referred to in a submitted document which was not specifically mentioned in support of the application or claim during oral pleadings.
The judge shall assess, in the light of the circumstances, whether a party's silence with respect to an assertion or claim made by his adversary shall be regarded as an admission.”
Article 163
“1. Judgments of the Supreme Court shall be based on the matters submitted in the relevant case and the facts that have been proved or admitted. The provisions of Article 111 shall apply to the Supreme Court's judgments.
2. The Supreme Court may base its resolution of a case on requests or factual submissions which were not made to the district court, provided they were referred to in the party's statement of case, the basis of the litigation remains unaltered, the failure to make them to the district court was excusable, and the party's rights would be adversely affected if they were not considered.”
27. The State Medico-Legal Board Act, No. 14/1942 (“the SMLB Act”), contains inter alia the following provisions:
Section 2
“The State Medico-Legal Board shall have the role of providing the courts, the prosecution authorities and the supreme health authorities with expert opinions on medical matters.
Among its functions shall be the provision of opinions on any medical certificates submitted to the courts, provided these are sent to the Board in accordance with a judicial decision.
The State Medico-Legal Board shall provide the supreme health authorities with its opinions as to the propriety of a particular measure, action or conduct on the part of a doctor, dentist, masseur, pharmacist nurse, midwife or other similar health professional.
The State Medico-Legal Board shall provide the supreme health authorities with its opinions relating to health measures of extensive scope, in particular measures to check the spread of infectious diseases.”
Section 3
“The State Medico-Legal Board shall only attend to matters referred to the Board in accordance with the provisions of section 2 by the parties stated therein.
The Board shall not provide opinions on the mental condition or criminal responsibility of any person, unless an expert opinion following suitable examination has already been obtained, assuming such examination was possible.
The Board shall not provide an opinion on a person's cause of death, unless an expert opinion following an autopsy, or a report on loss of life in accordance with the applicable legislation in cases of violent or sudden death, has already been obtained, assuming such evidence was available.”
Section 4
“The State Medico-Legal Board shall seek the opinions of outside experts on matters that are not within the specialist knowledge of its members.
Before invalidating a doctor's certificate the board shall, if possible, offer the doctor in question an opportunity to put forward his arguments in support of his view.
The Board shall, if possible, consult the person in question, and his professional organisation, on any matters specifically relating to a measure, an action or the conduct of a doctor or other health professional (cf. section 2, third paragraph), before providing its opinion.”
Section 5
“No member of the State Medico-Legal Board shall take part in deciding a matter relating to himself or his principal, or with respect to which he has previously taken a stand, personally or in an official capacity. If the Board is prevented from carrying out its function as a result of any of its expert members being unable to take part in deciding a matter within his speciality, the Minister shall appoint such other expert as the Board may propose to replace him for the consideration of that particular matter.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1