ITEMID: 001-58082
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: CHAMBER
DATE: 1996
DOCNAME: CASE OF TERRA WONINGEN B.V. v. THE NETHERLANDS
IMPORTANCE: 3
CONCLUSION: Lack of jurisdiction (complaint inadmissible);Preliminary objections rejected (non-exhaustion of domestic remedies, estoppel);Violation of Art. 6-1;Not necessary to examine Art. 13;Pecuniary damage - claim dismissed;Costs and expenses partial award - Convention proceedings
JUDGES: N. Valticos
TEXT: 7. The applicant company have their registered office in The Hague. Their business includes the development of real property.
8. The company owns 288 flats in six adjacent blocks situated on the Merellaan in Maassluis, in a neighbourhood known as the NoordNieuwlandsepolder-zuid. These blocks of flats were built around 1970 on land which, between 1961 and 1967, was levelled up to a height of 3-4 metres above normal Amsterdam level (Normaal Amsterdams Peil) with silt dredged up from various docks of the nearby port of Rotterdam.
9. In 1985 it was reported that a smell of mineral oil had been noticed in a garden in the Noord-Nieuwlandsepolder-zuid during digging. This and a survey by Rotterdam’s Department of Works of places where harbour silt had been discharged led the Rhine Estuary Regional Authority (Openbaar Lichaam Rijnmond - a now defunct administrative body which used to exercise within the Rhine estuary region authority transferred to it from the Provincial Executive (Gedeputeerde Staten)) to include the neighbourhood in its 1985 programme of measures to be taken under the Soil Cleaning (Temporary Provisions) Act (Interimwet Bodemsanering - see paragraph 29 below) and order the Rhine Estuary Central Department for Environmental Protection (Dienst Centraal Milieubeheer Rijnmond) to undertake an exploratory inspection (oriënterend onderzoek - see paragraph 32 below) of the neighbourhood. The findings were such that in 1986 the Public Health Inspectorate (Inspectie Volksgezondheid) advised the local residents not to eat fruit and vegetables grown in their own gardens or allotments. The Provincial Executive of the province of South Holland ordered a further inspection (nader onderzoek - see paragraph 32 below) in December 1986.
In July 1990 the Rhine Estuary Central Department for Environmental Protection submitted a report on its further inspection. It found that pollution caused by the heavy metals arsenic and mercury and by "drins" (a group of compounds used as insecticides), especially dieldrin and isodrin, was severe in places; where it occurred, it was generally present up to surface level. There were also moderate cadmium and lead pollution levels. The report noted that no covering layer of clean soil had been applied. The chapter headed "Findings" ("Conclusies") included the following:
"It can be said that the additional concentration of chemicals as a result of the pollution of the soil is undesirable but not, given present (relatively limited) scientific knowledge, that it will cause noticeable or measurable harm to health." (p. 139)
The final chapter, headed "Recommendations", stated that in unfavourable circumstances young children, if exposed to the pollution found, might absorb more than the acceptable daily intake (ADI) of the pollutants concerned and that in many places the quantity of "drins" in the actual contact zone exceeded concentration level C given in the assessment tables of the Soil Cleaning Guidelines (see paragraph 31 below). It was therefore recommended that an inspection should be carried out with a view to possibly cleaning the soil (saneringsonderzoek - see paragraph 32 below) and determining
"how the detrimental effects of the soil pollution on public health and the environment can be eliminated, so as to achieve a result acceptable from the point of view of environmental hygiene" (p. 141).
10. In a letter of 1 November 1990 the Provincial Executive informed the local residents that the further inspection had led them to conclude that further soil cleaning measures were necessary. The letter referred to the "undesirable situation" caused by the presence of pollutants and their proximity to the surface and reiterated the advice to residents not to eat fruit and vegetables from their gardens. The letter went on to state that the Provincial Executive had decided in principle to have the soil cleaned.
The draft of the decision was made available for public inspection for four weeks from 5 November 1990 (see paragraph 33 below).
11. In a letter dated 26 March 1991 the Provincial Executive informed the municipal authorities of Maassluis that it had decided to order an inspection with a view to possibly cleaning the soil.
The Provincial Executive’s implementation programme (uitvoeringsprogramma) for soil cleaning from 1992 onwards (see paragraph 32 below) included the Noord-Nieuwlandsepolder-zuid.
12. On 18 April 1990 the applicant company let a third-floor flat in one of their blocks in the Merellaan to a Mr W. as from 1 May 1990. The agreed rent was 790.25 Netherlands guilders (NLG) a month.
13. On 9 July 1990 Mr W. applied to the Rent Board in Schiedam for a ruling as to the fairness of the rent (section 17 (1) of the Rents for Housing Accommodation (Huurprijzenwet Woonruimte) Act - see paragraph 21 below).
A report established by a Rent Board inspector on 1 October 1990 stated that there was neither serious overdue maintenance nor any "absolute or relative zero condition", i.e. ground for reducing the rent to the legal minimum (absolute of relatieve nulpunten). In the inspector’s view, the standard of the flat should be assessed at 132 points under the applicable point-rating system (see paragraphs 25-26 below).
At the hearing before the Rent Board on 30 January 1991 Mr W. submitted a copy of the Provincial Executive’s letter of 1 November 1990 (see paragraph 10 above) but did not contest the inspector’s findings.
14. The Rent Board gave its ruling on 17 April 1991. It found that in view of factual circumstances relied on by the applicant company but overlooked by the inspector the standard of the flat should be assessed at 134 points. On that basis it concluded that the agreed rent was not fair and assessed the fair rent at NLG 783.07. It does not appear from the ruling that account was taken of the Provincial Executive’s letter.
15. On 24 June 1991 the applicant company applied to the District Court of Schiedam for a binding decision (see paragraph 22 below). They contested certain factual assumptions made by the Rent Board in regard to noise levels and argued that the Rent Board had made a miscalculation; the correct standard rating of the flat should be 142 points. On that basis they sought an order to set the rent at NLG 832.14 or, in the alternative, at the sum originally agreed (NLG 790.25).
16. In the course of the ensuing proceedings, Mr W. argued that there was an "objectionable situation" (hinderlijke situatie) that justified reducing the points rating by 20 points and setting the rent at the legal minimum, NLG 395 (point 4 of Schedule IV to the Housing Rents Ordinance (Besluit huurprijzen woonruimte) - see paragraph 28 below). He submitted the following documents:
(a) a copy of the Provincial Executive’s letter of 1 November 1990 (see paragraph 10 above);
(b) a copy of a decision given by the Rotterdam District Court on 4 June 1991 in a different but similar case concerning a flat in Rotterdam;
(c) a copy of the letter of 26 March 1991 from the Provincial Executive to the municipal authorities of Maassluis (see paragraph 11 above);
(d) the Provincial Executive’s implementation programme for soil cleaning from 1992 onwards (see paragraph 11 above).
The applicant company, besides adducing further argument in support of their factual allegations, argued, inter alia, that the soil pollution should not be taken into account. Relying on the passage from the report of the further inspection quoted at paragraph 9 above, they said that it did not appear from the report that there was "pollution of the soil under or in the immediate vicinity of the accommodation such as to cause serious danger to public health or the environment". In addition, the pollution found could not affect the standard of a third-floor flat without a garden. All things considered, there was no reason to deduct any points at all on this ground.
17. The District Court gave its decision on 10 March 1992, assessing the standard of the flat at 123 points and setting the rent at NLG 399.75 with effect from 1 May 1990. Having regard to the fact that, after a further inspection as provided for by the Soil Cleaning (Temporary Provisions) Act, the Provincial Executive had designated the area as one where soil cleaning was required, and had set it down in its annual soil-cleaning programme for 1992 as a site to be dealt with in accordance with that Act, the court found it established that there was an "objectionable situation" that justified reducing the points rating by 20 points and setting the rent at the legal minimum. Referring to its own precedent of 5 June 1990 (see paragraph 38 below), it dismissed the applicant company’s arguments that are summarised in the preceding paragraph. It did so in the following terms:
"8.3.... we consider that it is not for us to go into the question whether the Provincial Executive acted correctly in making the decision pursuant to section 2 (1), second sentence, of the Soil Cleaning (Temporary Provisions) Act, or whether that decision was well-founded. We should not even address such questions indirectly by weighing the findings of the investigation (on a case-by-case basis) when determining whether the (absolute) zero condition, as formulated under point 4 of Schedule IV to the Ordinance implementing the Rents for Housing Accommodation Act ..., is satisfied.
8.4. The `serious danger etc.’ in the polder is necessarily implied by the decision of the Provincial Executive to designate the site as one where soil cleaning is required [saneringsgeval]; consequently, it is also established that the absolute zero condition (which is formulated in identical terms) is satisfied.
8.5. It makes no difference in this connection that the accommodation in question is a third-floor flat without a garden of its own. The pollution is present `in the immediate vicinity’ of the accommodation. The [applicant company] have acknowledged that this expression is - justifiably – construed broadly in the relevant case-law."
18. The applicant company did not lodge an appeal against this decision (see paragraph 23 below).
19. The following is a statement of the relevant domestic law and practice as they stood at the time of the events complained of.
20. Rents for certain categories of housing accommodation are determined by the Minister for Housing, Planning and Environment Protection. With regard to all other housing accommodation, landlords and tenants of housing accommodation are in principle free to agree a rent between themselves (section 3 of the Rents for Housing Accommodation Act).
21. However, section 17 (1) entitles both the landlord and the tenant, within three months of entering into the tenancy agreement, to apply to the Rent Board for a ruling on the fairness of the agreed rent.
22. Parties are deemed to have agreed the rent found by the Rent Board to be fair unless within two months one of them applies to the District Court for a different decision (section 17 (8)).
23. By section 28 (3) of the Rents for Housing Accommodation Act, no appeal lies against the decision of the District Court other than an appeal on points of law "in the interests of the law" (cassatie "in het belang der wet" - see paragraph 37 below).
24. Detailed substantive provisions for the implementation of the Rents for Housing Accommodation Act are to be found in the Housing Rents Ordinance ("the Ordinance"). The Ordinance is binding on the Rent Board and the District Court (sections 15 (1) and 28 (1) of the Rents for Housing Accommodation Act).
25. According to section 5 (1) (a) of the Ordinance, the fairness of the rent for self-contained accommodation (zelfstandige woonruimte) such as the flat let to Mr W. by the applicant company must be assessed in accordance with the point-rating system set out in Schedule I to the Ordinance.
26. Under Schedule I, points are awarded for features relating to the standard of the accommodation itself - such as the type of dwelling (house or flat), the size of the rooms, bathroom facilities and the standard of heating installations - and for features relating to the surroundings (such as the proximity of public transport, schools and shops). Up to thirty points are deducted for the age of the accommodation and up to twenty for "objectionable situations" (such as persistent noise or pollution).
The "zero condition" system is succinctly explained in the explanatory memorandum to the Ordinance as follows:
"In the Government’s view, certain deficiencies of a technical or residential nature [technische en woontechnische gebreken] are so serious that they ipso facto stand in the way of rent increases. Section 6 (3) refers in this connection to the serious deficiencies listed in Schedule IV to this Ordinance. These deficiencies are commonly referred to as `zero conditions’. If there is such a deficiency, the Rent Board need not assess the seriousness of the situation [hinder] but must find without more ado that it is not reasonable to raise the rent. It must so hold even if the tenant does not explicitly rely on this deficiency.
The presence of a deficiency of the type referred to is considered unacceptable in view of the danger it presents. The deficiency ought therefore to be cured as soon as possible or the accommodation ought no longer to be occupied. However, as long as the accommodation continues to be occupied despite the unacceptable situation, it is not fair to raise the rent."
27. The range within which the rent is fair is calculated according to the resultant points rating. As a rule, the rent determined by the Rent Board and by the District Court will be at the higher end of the range (section 7 (1) of the Ordinance); however, the rent may be reduced if one of the "very serious deficiencies" or "absolute zero conditions" set out in Schedule IV to the Ordinance is established.
28. Schedule IV originally listed deficiencies relating to the accommodation itself, such as lack of a flush lavatory or cooking facilities, lack of main drainage, or gas pipes or electricity cables so dangerous that the public utility companies were not prepared to supply gas or electricity. Another such "absolute zero condition" was if accommodation was in such a poor state of repair that it was unsafe and therefore unfit for habitation. As of 1 July 1986, and without any separate explanatory memorandum, a fourth point was added to Schedule IV:
"The further inspection under the Soil Cleaning (Temporary Provisions) Act has indicated pollution of the soil under or in the immediate vicinity of the accommodation such as to cause serious danger to public health or the environment."
29. In 1982, partly owing to the discovery in 1980 of cases of very extensive soil pollution, the Soil Cleaning (Temporary Provisions) Act (of 29 December 1982) was enacted. It entered into force on 15 April 1983. Its purpose was to set rules "aimed at eliminating within a short time or preventing soil pollution and its harmful effects where existing or potential pollution of the soil is such that there is a serious danger to public health or the environment".
Section 2 (1) of this Act provided as follows:
"Over a period of five consecutive years, the Provincial Executive shall each year draw up a programme for cleaning polluted soil. The programme shall indicate the cases within the territory of the province in which existing or potential pollution of the soil is such that there is a serious danger to public health or to the environment. The programme shall also indicate the cases in respect of which it must be determined whether such circumstances apply."
30. An explanation of various expressions used in the interim Act and directions as to the manner in which the Act was to be implemented were given in the Soil Cleaning Guidelines.
31. According to the Soil Cleaning Guidelines, in the seventh revised version (December 1991), the possible danger had to be assessed as follows:
"During the parliamentary discussions of the bill [which eventually entered into force as the interim Act] this criterion was given the following construction. Direct and frequent contact between human beings or plant or animal life and the pollutants must either be present or imminent and it must be either certain or likely that such contact will be potentially detrimental to public health or the environment. On this construction, stress must be laid on the imminence of such contact and the probability of such detrimental effects. The expression `serious danger’ therefore indicates an unacceptably increased risk rather than an acute threat ... [Part II of the Guidelines] mentions three aspects which fall to be considered, namely the nature and concentration of the pollutants, the local pollution situation and the use made of the soil. The nature and concentration of the pollutants give an impression of the extent of the pollution and its possible effects. The local pollution situation gives an idea of the extent to which spreading or contact may occur. The use of the soil determines the likelihood of exposure to the pollutants and the resulting risks. A consideration of these three aspects taken together [integrale afweging] must lead to an answer to the question whether cleaning is at all necessary or required as a matter of urgency ..." (paragraph 1.6 of Part I of the Soil Cleaning Guidelines)
To assist in assessing the nature and concentration of the pollution, tables were drawn up listing the concentrations of various pollutants which, if exceeded, made action necessary. Concentration level A was the reference level below which no action was required. Concentration level B was the level indicating the need for a further inspection. Concentration level C necessitated an inspection with a view to possibly cleaning the soil as a matter of urgency.
32. The stages in the preliminaries to soil cleaning, as they appeared from the Guidelines, were the following:
a) preliminary measures, not laid down in the soil-cleaning programme:
(i) a survey of the places where soil pollution might be expected (inventarisatie). This might be based on complaints from individuals, as in the present case (see paragraph 9 above), an inspection of documents relating to land use or dumping, reports submitted by municipalities, or any other relevant information;
(ii) an exploratory inspection, the purpose of which was to gain a general idea of the nature, location and concentration of pollutants. This inspection was a limited one;
b) further measures, laid down in the soil cleaning programme:
(iii) a further inspection, more extensive than the exploratory one, to obtain information which would make it possible to assess the dangers to public health and the environment, and hence to judge the necessity and urgency of cleaning the soil;
(iv) an inspection with a view to possibly cleaning the soil, the purpose of which was to enable a decision to be made on the necessary measures in the light of the budgetary and technical possibilities;
(v) the drawing up of a plan for actually cleaning the soil.
33. Section 5 of the Soil Cleaning (Temporary Provisions) Act provided as follows:
"1. Before finally adopting a cleaning programme, the Provincial Executive shall make the draft available for public inspection with the reports of the inspections on which it is based. They shall at the same time send the draft to the Provincial Council [Provinciale Staten], the municipalities in their province and the Inspector [of Public Health].
2. Before doing so, they shall give notice of the fact of making the draft available for public inspection in the Government Bulletin [Nederlandse Staatscourant] and in one or more daily papers or newspapers distributed in the province. These announcements shall also mention that members of the public are entitled to lodge objections in accordance with subsection (4) below.
3. For a period of one month from the day on which the draft of a programme is made available for public inspection, anyone may inspect free of charge the documents thus made available.
4. During the period referred to in subsection (3) above, may lodge written objections to the draft, stating their reasons, with the Provincial Executive."
34. Paragraph 2.2.7 of Part I of the Soil Cleaning Guidelines made it clear that the final programme had to set out the Provincial Executive’s views on any objections received and that such objections were to be appended to the final programme. Although the Act did not provide for any form of appeal against the adoption of the programme, the objections were brought to the attention of the Minister, who was empowered to modify the provincial programme in a reasoned decision.
35. The Soil Cleaning (Temporary Provisions) Act was significantly amended by the Act of 2 July 1992. A number of its provisions, including sections 2 and 5, were repealed.
The interim Act as a whole was repealed by the Act of 10 May 1994 (Official Gazette (Staatsblad) 1994, no. 331), its provisions being incorporated into the Soil Protection Act (Wet bodembescherming).
36. Section 100 of the Judicial Organisation Act provides as follows:
"1. Except for an appeal on points of law [filed by the Procurator-General with the Supreme Court] `in the interests of the law’, an appeal on points of law against a judgment delivered by a district court in a civil case shall be allowed only:
- on the ground that the judgment did not state the reasons on which it was based;
- on the ground that the judgment was not delivered in public;
- on the ground of want of competence;
on the ground that the district court exceeded its jurisdiction.
2. Except for an appeal on points of law `in the interests of the law’, appeals on points of law against a decision [beschikking] delivered [following proceedings in camera where that is required by law] by a district court in a civil case shall be allowed only on the grounds set out in paragraphs 1, 3 and 4 of subsection (1) above."
37. An appeal on points of law "in the interests of the law" may be lodged with the Supreme Court (Hoge Raad) by its Procurator-General (procureur-generaal) at his discretion and does not affect the parties’ rights and obligations as determined in the judgment or decision appealed against (sections 95 and 98 of the Judicial Organisation Act).
38. As mentioned in paragraph 28 above, no explanation was given for introducing point 4 of Schedule IV to the Ordinance. This situation has contributed to uncertainty as to how that provision is to be construed.
The first problem relates to the construction of the expression "under or in the immediate vicinity of the accommodation". It is usually assumed in legal writing and the relevant case-law that this expression should be interpreted broadly.
The second problem relates to the question that was also at issue in the instant case: whether courts should themselves decide whether the "further inspection under the Soil Cleaning (Temporary Provisions) Act" justifies the conclusion that "pollution of the soil" is "such as to cause serious danger to public health or the environment", or alternatively assume that such serious danger is present when the competent authorities have decided on the basis of a further inspection in a particular case that soil cleaning measures are required.
There is a difference of opinion on the latter point. A number of district courts have adopted the first view - see the following decisions: Amsterdam District Court, 14 December 1990, Woonrecht (Housing Law Reports) 1991, nos. 23 and 24; Zaandam District Court, 26 September 1991, Woonrecht 1991, no. 63. Others have adopted the alternative view - see the following decisions: Dordrecht District Court, 23 March 1989, Nederlandse Jurisprudentie (Netherlands Law Reports - NJ) 1989, no. 874, Woonrecht 1990, no. 1; Schiedam District Court, 5 June 1990, Woonrecht 1990, no. 87; Rotterdam District Court, 5 June 1990, Woonrecht 1990, no. 88; Zutphen District Court, 22 December 1992, Woonrecht 1992, no. 30; Assen District Court, 30 August 1993, Woonrecht 1993, no. 80.
It would appear that the latter view is also that of the Deputy Minister (Staatssecretaris) for Housing, Planning and Environment Protection (who sets the rents for certain categories of housing accommodation and in so doing has regard to Schedule IV to the Ordinance), in the light of his letter of 15 June 1990, published in Woonrecht 1990 at p. 212. This letter includes the following statement:
"Your view is that one may conclude from the drafting history and the wording of the fourth absolute zero condition in Schedule IV that this condition should always apply automatically in those cases in which the Provincial Executive has decided that the situation is as set out in section 2 (1), second sentence, of the Soil Cleaning (Temporary Provisions) Act. I can agree with your conclusion, while pointing out that the area in question should have been included in the soil-cleaning programme on the basis of the findings of a further inspection."
In a case in which the Judicial Division (Afdeling Rechtspraak) of the Raad van State had to consider a rent decision of the Secretary of State in which point 4 of Schedule IV had been applied to accommodation in the Steendijkpolder in Maassluis (see next paragraph), it held that the Secretary of State "[had] not erred in considering it relevant that the Provincial Executive of the province of South Holland, in applying section 2 of the Soil Cleaning (Temporary Provisions) Act, [had] established on the basis of the report of the further inspection that there was a serious danger as referred to above" (judgment of 1 November 1991, Woonrecht 1991, no. 32).
39. As indicated in the previous paragraph, a number of the above-mentioned decisions and judgments relate to the Steendijkpolder, a polder adjoining the Noord-Nieuwlandsepolder-zuid which the municipal authorities of Maassluis had had levelled up with polluted harbour silt and then sold as building land. Point 4 of Schedule IV has consistently been held to be applicable to rents in that area: see the Schiedam District Court’s decision of 5 June 1990, Woonrecht 1990, no. 87, and the judgment of the Judicial Division of the Raad van State of 1 November 1991, Woonrecht 1991, no. 32.
Mention may be made in passing of a judgment of the Hague Court of Appeal which seems also to adopt the alternative view. In its judgments of 6 December 1990 (cases nos. 14,668, 14,669 and 14,670, cited in the report of the Supreme Court’s judgment of 9 October 1992, NJ 1994, no. 286), the Hague Court of Appeal established that the municipality (gemeente) of Maassluis was liable in tort for the sale of the Steendijkpolder as building land. The Court of Appeal’s reasoning included the following:
"With regard to the liability of [the municipality of] Maassluis, the Court of Appeal notes first of all that as the Government [rijksoverheid] has decided in accordance with section 2 et seq. of the Soil Cleaning (Temporary Provisions) Act that the soil should be cleaned, it must be held to have been established that there is in the present case a `serious danger to public health or to the environment’ within the meaning of that Act (section 2 (1))."
No submissions challenging this reasoning were made in the ensuing appeals on points of law. In any event, the Supreme Court in its abovementioned judgment of 9 October 1992 held the appeals to be unfounded and so allowed the judgment of the Court of Appeal to stand.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-4997
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: STADLER v. AUSTRIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is an Austrian national, born in 1946 and living in Maria Enzersdorf. She is a civil servant in the Ministry for Agriculture and Forestry (Bundesministerium für Land- und Forstwirtschaft).
A.
The facts of the case, as submitted by the parties, may be summarised as follows.
From 1984 onwards the applicant was the deputy head of the department for internal auditing (Interne Revision) in the Ministry for Agriculture and Forestry. From 1 April 1989 to 31 March 1990 S., the head of the department, was on temporary leave and seconded to the Court of Audit (Rechnungshof). Initially, the applicant replaced him.
On 16 May 1989 the applicant filed a request with the Ministry of Agriculture and Forestry for an extended extra duties allowance (Verwendungszulage) to compensate for her additional work load and responsibility as acting head of the department.
On 27 June 1989 M. was appointed as provisional head of the department for internal auditing. This appointment was made public in August 1989.
On 21 September 1989 the responsible civil servant in the Ministry of Agriculture and Forestry qualified the applicant’s request as one for a simple extra duties allowance (Verwendungsabgeltung) and transmitted this request for approval to the Federal Chancellor’s Office (Bundeskanzleramt).
On 18 December 1989 the Ministry for Agriculture and Forestry, in a summary decision (Dienstrechtsmandat), granted the applicant a simple extra duties allowance for the period from 1 April 1989 until 30 June 1989.
On 3 January 1990 the applicant filed objections (Vorstellung) against the summary decision. She submitted that M., head of the department for external auditing, had been appointed as provisional head of the department for internal auditing on 29 June 1989. This appointment was only effective as of 28 August 1989. As she had not been officially removed from her position as acting head of the department, she continued to occupy that position after M’s appointment. Consequently, she was entitled to an extended extra duties allowance after 30 June 1989. Though the calculation of the allowance had to be altered after M. had started to work on 30 August, the allowance could not be cancelled completely. She requested the re-calculation of her "simple extra duties allowance (extended extra duties allowance)".
By letter of 14 February 1990 the Ministry of Agriculture and Forestry informed the applicant that it intended to grant her a simple extra duties allowance for the period from 1 April 1989 until 31 August 1989. It stated that the appointment of M. as provisional head of the department for internal auditing was effective as of 30 August 1989. Therefore the applicant’s function as acting head of the department had ended on 30 August 1989.
On 19 May 1990 the applicant commented on the Ministry’s letter of 14 February 1990. She repeated that she was still acting head of the department for internal auditing, contested that M. had been validly appointed and raised doubts about the compatibility of M.’s functions. She claimed a simple extra duties allowance for the whole replacement period, namely from 1 April 1989 until 31 March 1990.
On 14 February 1991 the Ministry for Agriculture and Forestry granted the applicant a simple extra duties allowance for the period from 1 April 1989 until 31 August 1989 and dismissed her request for an allowance for the period from 1 September 1989 until 31 March 1990. The Ministry found that the applicant had actually been in charge of the department as substitute to the head from 1 April 1989 until 30 August 1989. For this period she was therefore entitled to a simple extra duties allowance.
On 4 April 1991 the applicant, represented by counsel, filed a complaint with the Administrative Court. She submitted that the former head of the department had decided to stay permanently with the Court of Audit. The post of the head of the department was therefore vacant. As she had never been removed from her functions as actual head of the department, and as someone was needed in the department who did not exercise any incompatible functions, she was still the provisional head of the department. Since only the abstract scope of her responsibilities was decisive for the allowance, she had a right to a simple extra duties allowance until 31 January 1991, on which date she had been seconded to the Office of the Parliament (Parlamentsdirektion).
On 14 September 1994 the Administrative Court dismissed the complaint. Referring to the provisions of Section 30a §§ 1 (3) and 5 of the Salaries Act (Gehaltsgesetz), it found that the only issue to be determined was whether or not the applicant had been entitled to a simple extra duties allowance. She had not complained to the Administrative Court that she had been entitled to an extended extra duties allowance and the case-file did not show that she had been entitled to such an allowance.
B. Relevant domestic law
Section 30 a §§ 1 and 5 of the Salaries Act (Gehaltsgesetz), insofar as relevant, reads as follows:
"(1) A civil servant is entitled to an extra duties allowance which has to be taken into account when assessing his pension claim, if he permanently ...
3. has a considerable level of responsibility for the accomplishment of tasks of general administration and if this level of responsibility exceeds the one which is normally connected with a position in an equal grade.
(5) If the civil servant does not permanently perform the duties mentioned in para. 1, but does so for at least a period of one month, he is entitled to an extra duties allowance, which shall not be taken into account when assessing his pension claim ..."


ITEMID: 001-88375
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF FOKIN v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
TEXT: 4. The applicant was born in 1961 and lives in Insar, Republic of Mordoviya.
5. On 20 April 1999 the applicant was dismissed from his job as a security guard in a private company. He sued his former employer for reinstatement, payment of wage arrears and compensation for non-pecuniary damage.
6. On 19 November 1999 the Insarskiy District Court of the Republic of Mordoviya granted his claim in part and ordered his reinstatement in the job. This judgment was reversed on appeal by the Supreme Court of the Republic of Mordoviya, which remitted the case for fresh examination by the first-instance court.
7. On 9 January 2001 the Insarskiy District Court of the Republic of Mordoviya found the applicant’s dismissal justified and rejected the claims in full.
8. The applicant filed his statement of appeal on 18 January 2001. According to him, in the following months he regularly enquired with the court secretariat about the state of proceedings in his case but was informed each time that the date of the appeal hearing had not yet been fixed.
9. According to the Government, on 1 February 2001 the applicant was notified about the pending appeal hearing in his case. The applicant contested that he had received any notification.
10. In June 2001 the applicant went to the court in person and found out that the appeal hearing in his case had already taken place on 13 February 2001. He learned that his claim had been dismissed at the final instance.
11. After that, on 14 June 2001 the applicant received the appeal decision of the Supreme Court of the Republic of Mordoviya, which, inter alia, read as follows: “At the [appeal] hearing Mr Fokin maintained his claims and asked the court to grant them”. The decision also indicated that the other party to the proceedings was present at the hearing and maintained its objections to the claim.
12. The RSFSR Code of Civil Procedure of 11 June 1964 (in force at the material time):
“Parties and their representatives are to be notified with court summonses of the date and place of a court hearing or certain procedural actions ...
A summons is to be served on parties and their representatives in such a way that they have enough time to appear at a hearing and prepare their case ...
Where necessary, parties and their representatives ... may be summonsed by a phone call or a telegram.”
“Summonses are to be sent by mail or by courier. The time when a summons was served on an addressee is to be recorded on the summons and its copy, which is to be returned to the court ...”
“A summons is to be served on a person against his/her signature made on a copy of the summons, which is to be returned to the court ...”
“A civil case is to be heard in a court session with mandatory notification to all parties to the case ...”
“If a party to the case fails to appear and there is no evidence that the party was duly summonsed, the hearing is to be adjourned ...”
VIOLATED_ARTICLES: 6


ITEMID: 001-73297
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF SUKHOBOKOV v. RUSSIA
IMPORTANCE: 2
CONCLUSION: Violation of Art. 6-1 (non-enforcement);Remainder inadmissible;Pecuniary damage - financial award;Non-pecuniary damage - financial award
JUDGES: Christos Rozakis
TEXT: 4. The applicant was born in 1937 and lives in Volgodonsk, Rostov region.
5. The applicant receives an old-age pension. The Law on Calculating and Upgrading State Pensions of 21 July 1997 (the “Pensions Law”) introduced, since 1 February 1998, a new method of calculating pensions. This method, “Individual Pensioner Coefficient” (“IPC”), was meant to link a person’s pension to his previous earnings.
6. On 22 April 1999 the applicant brought proceedings against the Volgodonsk labour and social development authority (Департамент труда и социального развития) before the Volgodonsk Town Court. He argued that his IPC should be fixed at 0.7, which would result in an increase in his pension.
7. The Town Court found for the applicant and ordered the defendant authority to re-calculate the applicant’s pension from 1 February 1998 based on the IPC equal to 0.7 and pay the arrears of 3,186.36 roubles. According to the applicant and the documents submitted by him, the judgment was dated 25 October 1999 and came into force on 8 December 1999. According to the Government, the judgment was dated 25 November 1999 and came into force on 5 December 1999.
8. On 14 January 2000 the Town Court issued a writ of execution. On 26 January 2000 the Volgodonsk bailiff’s service instituted enforcement proceedings. As the payments in enforcement of the judgment had not been made the applicant complained to various authorities. In letters of 10 June and 3 October 2000 the enforcement proceedings supervision department of the Rostov region division of the Ministry of Justice informed him that the judgment debt would be paid to him upon receipt of funds from the State budget.
9. According to the Government, the Volgodonsk labour and social development authority lodged an application with the Town Court for reconsideration of the judgment given in the applicant’s case due to discovery of new circumstances. The authority argued that such a circumstance was an instruction of the Ministry of Labour and Social Development of 29 December 1999, which interpreted the Pensions Law in a way different from that in the judgment. On 29 September 2000 the Town Court granted the authority’s application and quashed the judgment due to discovery of new circumstances, notably the above ministerial instruction.
10. According to the applicant, he was never informed of the court decision of 29 September 2000.
11. On 5 January 2001 the Volgodonsk bailiff’s service terminated the enforcement proceedings. It stated in its decision as follows:
“The proceedings [instituted on the basis of the writ of execution in favour of A. K. Sukhobokov] should be considered as terminated in connection with remitting the writ of execution, without enforcement, at the request of the court.
On the basis of the foregoing, being governed by Section 27 (2) of the Federal Law on Enforcement Proceedings, decided that:
1. The enforcement proceedings no. ... should be considered as terminated.
2. The present decision may be appealed against to a relevant court within a ten-day term.
3. The enforcement proceedings [file] should be transferred to the archive.
4. The writ of execution no. ... issued by the Volgodonsk Town Court should be remitted to the Volgodonsk Town Court ...”
12. According to the applicant, he received a copy of that decision on 24 March 2001.
13. According to the applicant, the amount of his monthly pension was 1,523 roubles as of 1 May 2001.
14. Section 9 of the Federal Law on Enforcement Proceedings of 21 July 1997 provides that a bailiff’s order on the institution of enforcement proceedings must fix a time-limit for the defendant’s voluntary compliance with a writ of execution. The time-limit may not exceed five days. The bailiff must also warn the defendant that coercive action will follow, should the defendant fail to comply with the time-limit.
15. Under Section 13 of the Law, the enforcement proceedings should be completed within two months of the receipt of the writ of execution by the bailiff.
16. Section 27 of the Law reads:
“1. The enforcement proceedings are terminated:
...
2) by remitting the writ of execution, without enforcement, to the court or other body, by which it was issued, or a creditor at their request;”
...
2. The bailiff’s decision on the termination of the enforcement proceedings is subject to appeal to a relevant court within a ten-day term.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-99134
LANGUAGEISOCODE: ENG
RESPONDENT: MKD
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF SPASOVSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Zdravka Kalaydjieva
TEXT: 5. The applicant was born in 1964 and lives in Skopje.
6. On 10 February 2002 the applicant was seriously injured in an explosion caused by a bomb placed in a house located in the municipality of Aracinovo (“the municipality”). The incident happened after the 2001 armed conflict in the former Yugoslav Republic of Macedonia.
7. On 30 January and 1 June 2004 respectively the applicant, represented by counsel, brought two separate actions seeking compensation from the municipality and the State. They were subsequently joined.
8. On 8 November 2004 the Skopje Court of First Instance (“the first-instance court”) accepted the applicant's claim in respect of the State and ordered the latter to pay 750,000 Macedonian denars (MKD) (approximately 12,230 euros) in respect of non-pecuniary damage, plus interest. It relied on section 166 of the Obligations Act (see paragraph 13 below), stating that it had been in force at the time of the incident and that it was still in force. It dismissed the claim in respect of the municipality, stating that it was not liable to be sued (поради немање на пасивна легитимација). It found that section 3 of the amended Obligations Act (see paragraph 14 below), under which it falls to local self-government units rather than the State to pay compensation for any damage caused by acts of violence, had been set aside by the Constitutional Court's decision of 17 July 2002. The court declared the State liable to pay compensation for the damage, because the applicant was the victim of a clear act of violence and no investigation had been carried out by State authorities. This decision was served on the applicant on 15 December 2004.
9. The State appealed arguing that the Constitutional Court's decision had not been retroactive and that the State accordingly, could not be held liable to be sued. The appeal was received by the first-instance court on 27 December 2004 and communicated to the applicant on 13 January 2005. The applicant did not submit any observations in reply.
10. On 21 April 2005 the Skopje Court of Appeal allowed the appeal and overturned the lower court's decision in part related to the State. It confirmed the remainder, because no appeal had been lodged in that respect. The court endorsed the facts established by the first-instance court but held that the substantive law had been incorrectly applied. It found that section 3 of the amended Obligations Act had already entered into force at the time of the incident and applied in the applicant's case given the non-retroactive legal effect of the Constitutional Court's decision. This decision was served on the applicant on 8 June 2005.
11. On 23 August 2005 the applicant asked the public prosecutor to institute legality review proceedings (барање за заштита на законитоста) before the Supreme Court. He argued that both courts had accepted that he had sustained a bodily injury as a result of acts of violence or terrorism. However, no compensation had been awarded owing to the contradictory decisions of the first and second-instance courts as to who had been the proper defendant to his action.
12. On 27 October 2005 the public prosecutor informed the applicant that there were no grounds for lodging such a request against the Court of Appeal's decision.
13. Section 166 (1) of the Obligations Act of 5 March 2001 provided for the State's responsibility for any damage caused, inter alia, by a bodily injury sustained as a result of acts of violence or terrorism.
14. On 25 January 2002 the Obligations Act was amended. Under section 3 of the amended Obligations Act, the term “the State” was replaced with “the local self-government units where damage occurred”.
15. Under section 334 of the Civil Proceedings Act (“the Act”), as valid at the time, parties can appeal the first-instance decision within fifteen days of the date of service of this latter decision.
16. Section 340 § 2 (13) prescribes the following as a substantial procedural flaw: if the impugned decision contains deficiencies which makes its review impossible, in particular if it is illegible, contradictory, lacks reasoning or does not provide reasons for the relevant findings of fact or if they are unclear or contradictory.
17. Under section 351 of the Act, the second-instance court examines the first-instance court's decision in the challenged part. Section 351 § 2 provides that the Court of Appeal examines the first-instance court's decision on the basis of the grounds set out in the appeal and having regard to its ex officio capacity to consider any substantial procedural flaw and the correct application of the law.
18. The Constitutional Court rejected (укинува) section 3 of the amended Obligations Act as unconstitutional. It found that it was the State's responsibility to protect citizens from acts of violence and, accordingly, to cover any damage thereof.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-111422
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: COMMITTEE
DATE: 2012
DOCNAME: CASE OF SZENTESI v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)
JUDGES: András Sajó;Paulo Pinto De Albuquerque
TEXT: 4. The applicant was born in 1935 and lives in Budapest.
5. On 31 August 1999 the Budapest and Pest County Regional Pension Insurance Directorate established the applicant’s service years and the amount of his old age pension. The applicant appealed, challenging the amount of service years recognised. The second-instance administrative authority accepted the claim in part on 6 January 2000. This decision was later modified slightly ex officio to the applicant’s advantage on 23 February 2000.
6. On 13 April 2000 the applicant sought judicial review against the Pension Insurance Directorate’s decision before the Budapest Labour Court. The court dismissed his action on 25 March 2004.
7. The applicant lodged a petition for review with the Supreme Court, which quashed the Labour Court’s judgment and remitted the case to the first-instance court on 1 February 2005.
8. In the resumed proceedings the Labour Court again dismissed the applicant’s action on 16 November 2007. The Supreme Court upheld the first-instance judgment on 24 November 2008, which was served on the applicant on 7 January 2009.
9. The domestic courts relied on documentary evidence, the opinion of two forensic accountant experts and testimonies of the parties.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-72486
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: MELCHIOR v. GERMANY
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Ib Melchior, is an American national who was born in 1917 and lives in Los Angeles.
He was represented before the Court by Mrs Huntemann, a lawyer practising in Berlin.
In 1937 the applicant’s father, then a Danish citizen, owned an estate of one hundred hectares in Chossewitz/Niederlausitz (hereinafter the “Chossewitz estate”), on the territory of the former German Democratic Republic (GDR). The applicant’s father emigrated to the United States of America (USA) in 1939 and obtained US citizenship in 1947. The Chossewitz estate was initially leased to the German Department of Agriculture and Forestry in the Soviet-Occupied Zone (Deutsche Verwaltung für Land- und Forstwirtschaft in der sowietischen Besatzungszone), which was subsequently appointed as a trustee. In 1956 a legal-entity certificate (Rechtsträgernachweis) was issued, declaring the Chossewitz estate to be the property of the GDR (Eigentum des Volkes). When his father died in 1973, the applicant inherited the Chossewitz estate as well as the entitlement to claim any compensation that might be paid by a government in respect of the estate. The applicant subsequently declared before the Danish Consulate in Los Angeles that he wished to renounce his hereditary rights in favour of his sister, a Danish citizen. In 1995 the applicant withdrew the renunciation with his sister’s consent.
In the 1970s the GDR went into bilateral negotiations with the Kingdom of Denmark over unresolved financial and property issues. In 1976 the Danish government declared the Chossewitz estate as property requiring compensation by the GDR.
Between 1984 and 1987 the GDR concluded several “Lump Sum” Agreements (Globalentschädigungsabkommen) with Western European States. The GDR thus concluded with the Danish government, on 3 December 1987, an Agreement under which the GDR was to pay the amount of 19 million Danish kroner (DKK) on the basis of unresolved property and financial issues. The Agreement entered into force on 1 March 1988. After German reunification, the Federal Republic of Germany (FRG) succeeded to that treaty pursuant to Article 12 of the German Unification Treaty (Einigungsvertrag) in conjunction with the proclamation of 15 October 1992 on the expiration of international agreements between the GDR and Denmark (Bekanntmachung über das Erlöschen völkerrechtlicher Übereinkünfte der DDR mit Dänemark).
During the negotiating of the relevant Lump Sum Agreement, the two States disagreed on whether four particular estates, among them the Chossewitz estate, should fall within the scope of the Agreement. The GDR delegation was of the opinion that, because of its size, the Chossewitz estate had to be regarded as Großgrundbesitz (land which comprised more than one hundred hectares and which was situated in the Soviet-Occupied Zone of Germany after the Second World War), and, being covered by the land reform (Bodenreform), would not give rise to compensation. The GDR further argued that the estate had become its property (Eigentum des Volkes). All claims that the two delegations did agree upon had been added to a list prepared by the Danish delegation which was distributed upon the conclusion of the Agreement. Because of the above-mentioned dispute, the Chossewitz estate had not been included on that list.
Article 6 of the Lump Sum Agreement provided that all unresolved property and financial issues between the parties should be settled exhaustively and with final effect upon entry into force of the Agreement. The desire to settle these issues comprehensively had also been expressed by the two States in the Preamble to the Agreement.
Upon her application, the applicant’s sister received, from the lump sum, an amount of approximately 100,000 German marks (DEM) in respect of the Chossewitz estate.
In 1992 the FRG was registered as the owner of the Chossewitz estate in the land register. The applicant subsequently instituted proceedings for the return of the property. On 18 December 1996 the Frankfurt an der Oder Regional Court ordered the FRG to return the Chossewitz estate and to approve the rectification of the land register. The court found that the applicant’s claim had not been extinguished by the Danish government’s payment of around 100,000 German marks, under the Lump Sum Agreement, to his sister. The court held that the Lump Sum Agreement only concerned claims of Danish citizens with regard to property situated in the GDR, whereas the applicant held US citizenship.
On appeal by the defendant, the Brandenburg Court of Appeal, on 8 May 1998, quashed the Frankfurt an der Oder Regional Court’s judgment of 18 December 1996 and dismissed the applicant’s claim. The Brandenburg Court of Appeal noted that the Frankfurt an der Oder Regional Court had not been provided with the relevant and decisive facts regarding the Lump Sum Agreement. Even though his father’s property had not been formally expropriated by the GDR, the applicant’s claim had been extinguished by the entry into force of the Lump Sum Agreement which also comprised the Chossewitz estate, despite the fact that the latter had been the subject of debate between the two parties to the treaty. In return for the payment of the lump sum by the GDR, the Danish government had waived any claims of its citizens regarding property situated in the GDR.
Applying Articles 31 et seq. of the Vienna Convention on the Law of Treaties of 23 May 1969 (the “Vienna Convention”), the Brandenburg Court of Appeal found that the Agreement also comprised the Chossewitz estate. Even though the Brandenburg Court of Appeal noted that this conclusion could not be derived directly from the wording of the Agreement, the interpretation of Articles 2 and 6 in conjunction with the Preamble showed that the two States had opted for a final and exhaustive solution to all property issues. The Brandenburg Court of Appeal considered the materials from the negotiations and found that the Danish government had not been content with the original amount of compensation proposed by the GDR delegation. The Danish delegation had insisted that compensation was also to be paid in respect of the four estates which were the subject of debate, in order to avoid any liability for damages in relation to the individuals who claimed to be the owners of these estates. The GDR had thus raised the lump sum by a fixed amount (a so-called Restsumme), which would enable Denmark to pay compensation to each of the individuals who claimed to be the owners of the disputed estates once the claimants from the list distributed upon the conclusion of the Agreement had been satisfied. In raising the amount of the lump sum by the Restsumme, the GDR did not have to give up its legal view on those estates and avoided recognition of corresponding claims. The Brandenburg Court of Appeal held that the fact that the Chossewitz estate had not been included in the list of claims did not prove that it was not covered at all by the Agreement, but rather that compensation had been paid from the Restsumme.
The Brandenburg Court of Appeal also considered a statement on the matter by the Danish Ministry of Foreign Affairs (which the applicant had submitted) but found that, even though the Ministry had suggested a different assessment of the Agreement, it was based on the same facts and consequently did not lead to a different interpretation in the present case. The Brandenburg Court of Appeal noted that, on the contrary, the statement had been submitted together with a report of the Committee in charge of distributing the lump sum to the legitimate claimants. In that report, the Committee explained that it had informed the claimants in respect of the four estates at issue, among them the applicant’s sister, that their claims could be satisfied by the Restsumme. The claimants had not objected to this procedure. Moreover, the Brandenburg Court of Appeal regarded the fact that the applicant’s sister had accepted and received an amount from the lump sum as a further indication that the Chossewitz estate had been covered by the Agreement. Taking into account the relatively high amount of the lump sum, a proper reading of Articles 2 and 6 showed that the Agreement was not only binding under public international law upon the two States parties, but that it had also settled, with final effect, private claims of Danish citizens against the GDR. The distribution of the lump sum to the claimants would have been incomprehensible if they had retained their private claims against the GDR.
The question of the validity of the applicant’s renunciation of his hereditary rights in 1973, in favour of his Danish sister, was not decisive in the view of the Brandenburg Court of Appeal. Because of the then existing political situation, the applicant, as a US citizen, could not have expected the conclusion of a similar lump sum agreement between the USA and the GDR. The renunciation had represented the applicant’s only option if his family were to receive some compensation in respect of the Chossewitz estate through the Danish government. The fact that he had only withdrawn the renunciation in 1995, after the historical context had changed, proved that the applicant had originally accepted that the payment from the lump sum to his sister settled all claims in respect of the Chossewitz estate with final effect. Irrespective of his US citizenship, the Agreement was therefore also binding on him. The Brandenburg Court of Appeal further found that it did not matter whether or not the Agreement had been incorporated into the domestic law of the GDR in accordance with the applicable provisions.
The Federal Court of Justice dismissed the applicant’s appeal on points of law on 22 April 1999. The applicant subsequently brought proceedings for restitution and submitted material that he had previously submitted only to the Federal Court of Justice. The Brandenburg Court of Appeal dismissed his application on 26 November 1999. The applicant did not lodge an appeal on points of law against the judgment of 26 November 1999.
On 4 October 2000 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint. It did not rule on whether the applicant had exhausted all available remedies before the ordinary courts in view of the possibility of lodging an appeal on points of law against the 26 November 1999 judgment of the Brandenburg Court of Appeal. The Federal Constitutional Court found that the Brandenburg Court of Appeal’s interpretation of the Lump Sum Agreement, which after reunification had also become binding on the FRG, had not violated any of the applicant’s fundamental rights. It stated that, in principle, it was for the ordinary courts to apply and interpret international treaties, subject to review by the Federal Constitutional Court which would apply the same standards as for the review of the application of domestic law by the ordinary courts. It found that the right of property, as enshrined in Article 14 of the German Basic Law, was not applicable on the territory of the former GDR. Hence it reviewed the judgments of the Brandenburg Court of Appeal from the angle of the prohibition of discrimination (Gleichheitsgrundsatz) under Article 3 of the German Basic Law in conjunction with the principle of the rule of law (Article 20 § 3 of the German Basic Law). The Federal Constitutional Court found that there would have been a violation of Article 3 of the German Basic Law only if the interpretation of the ordinary courts had been manifestly erroneous. This had not been the case. The Brandenburg Court of Appeal’s view that the applicant’s property claim had been extinguished upon the entry into force of the Agreement had been based on the principle of diplomatic protection whereby, through the person of its nationals, a State can assert its own right to ensure respect for the rules of international law. Therefore, Denmark’s waiver of the property claims in return for receiving the lump sum was valid under international law for the applicant as well as the claimants, irrespective of whether or not Denmark had been entitled to make the waiver under domestic law. Moreover, the Brandenburg Court of Appeal’s interpretation of the Lump Sum Agreement and its application of Articles 31 et seq. of the Vienna Convention could not be regarded as arbitrary. Referring to a judgment of the International Court of Justice (South West Africa cases, Preliminary Objections, ICJ Reports 1962, p. 336), the Federal Constitutional Court stated that the object and purpose of an international treaty could take priority over its wording. In so far as the applicant complained about a breach of Article 31 § 2 (a) of the Vienna Convention, because the non-inclusion of the Chossewitz estate in the list of claims had not been regarded as decisive by the domestic courts, the Federal Constitutional Court held that the applicant had failed to demonstrate that the list had become an integral part of the Agreement. It found that the Brandenburg Court of Appeal had sufficiently considered the list when dealing with the purpose of the Agreement and the course of its negotiation. The Brandenburg Court’s reasoning on the applicability of the Agreement to the applicant’s case as well as its analysis of the negotiations leading to the Agreement, in particular the fact that the GDR did not recognise the applicant’s sister’s claim while Denmark, at the same time, had to insist on the claim in order to avoid its own liability, was regarded as being in accordance with Article 3 of the German Basic Law (prohibition of discrimination).
Pursuant to its Article 2, the Lump Sum Agreement covers property and financial claims of Denmark as well as of Danish citizens and legal persons with regard to property which was under GDR administration, provided that they were so entitled both on 8 May 1945 and on the date of the signing of the Agreement. Article 1 provides for the payment of DKK 19 million by the GDR to Denmark as compensation for the property and financial claims covered by Article 2.
Under Article 6 all unresolved property and financial issues between the parties were to be settled exhaustively and with final effect on the entry into force of the Agreement. In the Preamble to the Agreement, the two States expressed the desire for a comprehensive settlement of these issues.
“1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.
2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty; (b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.
3. There shall be taken into account, together with the context: (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; (c) any relevant rules of international law applicable in the relations between the parties.
4. A special meaning shall be given to a term if it is established that the parties so intended.”
“Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable.”


ITEMID: 001-84706
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: GAYVORONSKIY v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Karel Jungwiert;Margarita Tsatsa-Nikolovska;Mark Villiger;Peer Lorenzen;Rait Maruste;Snejana Botoucharova;Volodymyr Butkevych
TEXT: The applicant, Mr Nikolay Sergeyevich Gayvoronskiy, is a Ukrainian national who was born in 1949 and lives in Dzhankoy. The Ukrainian Government (“the Government”) were represented by their Agents, Mrs Z. Bortnovska, succeeded by Mrs V. Lutkovska and Mr Y. Zaytsev.
Pursuant a contract concluded in June 1992, the applicant advanced 40,000 karbovantsi to the State-owned “Zarichny” Farm (Радгосп «Зарічний») for construction of a residential house for his family. According to the text of the contract, the remainder of the funds were to be borrowed from the U.S.S.R. State bank. The contract did not specify whose responsibility it was to apply for the loan. Neither party secured the loan or otherwise financed the remainder of the construction costs.
The plot of land located at the address specified in the construction contract was never formally assigned to the applicant. In 1993 the municipality allocated the applicant a plot for the construction of a house at a different address. He used this plot for growing vegetables.
In 1993 the unfinished house, located at the address specified in the construction contract, was allocated to the R. family, who had advanced funding for the construction of a house in 1991. Having invested their personal funds, the R. family continued the construction and moved into the house.
By 1999 the Zarichny Farm was privatized, its shares having been distributed between employees and other private persons, and transformed into a collective agricultural enterprise (Колективне сільськогосподарське підприємство).
In June 1994 the applicant instituted civil proceedings in the Dzhankoy Court (Джанкойський міський суд Автономної республіки Крим), seeking to oblige the Zarichny Farm to fulfil the contract, namely, to finish the construction of the house located at the address specified in it. The R. family were summoned to the proceedings as a third party.
The Zarichny Farm lodged a counterclaim, seeking to have the contract with the applicant annulled.
On 10 June 1997 the court awarded the house, allocated to the R. family, to the applicant and dismissed the Zarichny Farm’s counterclaim. This judgment was not appealed against, became final and the enforcement proceedings were instituted to effect the house transfer to the applicant.
The R. family refused to leave the house, referring to the lack of any decision in respect of their rights, particularly, on reimbursement of their investments and provision of an alternative residence. The applicant instituted separate eviction proceedings against the R. family.
On 20 March 1998, while the eviction proceedings were still pending, the Presidium of the Supreme Court of the Autonomous Republic of the Crimea (“the Supreme Court of the ARC”; Верховний Суд Автономної Республіки Крим) quashed the judgment of 10 June 1997, following a supervisory protest lodged by the Deputy Prosecutor of the Autonomous Republic of Crimea and remitted the case for a fresh consideration. The court instructed the first-instance court to explore further whether the applicant could claim entitlement to the house at the address in question, particularly, in view of the unclear contractual language concerning an obligation to obtain a bank loan for construction and considering that the applicant had also been allocated a plot of land for construction under a different address.
Between 12 May and 19 August 1998 the proceedings were suspended at the applicant’s request in view of his business trip.
In February 1999 the applicant amended his claims, seeking punitive damages from the Zarichny Farm in addition to the house transfer and joining his eviction claims to the main proceedings.
On 25 February 1999 the court dismissed the applicant’s claims and the Farm’s counterclaim. It found that the R. family had lawfully obtained the house in issue and that the applicant’s house was due to be located at another address. The court also dismissed the Farm’s counterclaim. The applicant appealed in cassation.
On 19 May 1999 the Supreme Court of the ARC quashed this judgment, having found the first-instance court’s analysis insufficient, particularly as regards the legal nature of the construction contract and the parties’ obligations to secure a bank loan, and assumed jurisdiction over the case, referring to its complexity and delay in resolution.
On 21 December 1999 the Supreme Court of the ARC found that an expert assessment was necessary to establish the value of the disputed house and the applicant’s contribution in the new hryvnya currency and according to the current prices. The court obliged the defendant to pay for the assessment.
In 2000 the Zarichny Farm was reorganized, two entities, the Agricultural Cooperative “Zarichny” (“the Zaricnhy Cooperative”; Сільськогосподарський виробничий кооператив «Зарічний») and the “K.P.A” CJSC (ЗАТ «Селянська промислова артіль») having subsequently emerged on its basis.
As the fee for the expert assessment commissioned by the court remained unpaid owing to the defendant’s reorganization and financial difficulties of the emerging entities (i.e., the Zarichny Cooperative’s bank account had been blocked by the authorities), on 23 October 2000 the Supreme Court of the ARC ordered to advance the respective payment from its own budget.
In April 2001 the expert assessment was completed and the proceedings were resumed. The Supreme Court of the ARC determined that the Zarichny Cooperative was the Zarichny Farm’s successor in respect of the obligations vis-à-vis the applicant and summoned it into the proceedings.
In May 2001 the applicant altered his claim. He informed the court that, having obtained other lodging, he was no longer interested in the construction of a house and demanded termination of the contract and compensation of damage.
The defendant amended its counterclaim, advancing new justifications for the annulment of the contract.
On 21 May 2001 the Supreme Court of the ARC annulled the contract, having found that its provisions did not comply with the law applicable at the material time. Based on the findings of the expert assessment, it awarded the applicant against the Zarichny Cooperative 36,523.24 hryvnyas (UAH) as the equivalent to his investment into the construction and UAH 365.23 in court fees. The applicant appealed in cassation to the Supreme Court of Ukraine, seeking a higher payment.
On 24 October 2001 the Supreme Court heard the case on the merits and upheld the judgment of 21 May 2001.
On an unspecified date the enforcement proceedings were instituted to collect the debt due to the applicant pursuant the judgment of 21 May 2001. On 9 August 2005 the State bailiffs forwarded the enforcement writ to the trustee in bankruptcy, owing to the fact that the debtor had been declared bankrupt and subject to liquidation. The applicant did not inform the Court whether and to what extent the judgment had been eventually enforced.
In 1995 the four members of the applicant’s family obtained privatization certificates entitling them to privatize a share of the State property. The applicant alleges that they were unable to invest these certificates in a satisfactory manner on account of the unlawful conduct of the authorities.
In 2002 the applicant had several arguments with post-office employees concerning the procedure of sealing and stamping his correspondence to the Court. In addition, a delivery slip concerning one of his registered letters to the Court was lost.
In 2005 the Zarichny Cooperative allegedly failed to produce at the applicant’s request a document certifying that he had been formerly employed by the Zarichny Farm.


ITEMID: 001-78571
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF VERLAGSGRUPPE NEWS GMBH v. AUSTRIA (No. 2)
IMPORTANCE: 2
CONCLUSION: Violation of Art. 10;Pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings
JUDGES: Christos Rozakis
TEXT: 7. The applicant is a limited liability company with its registered seat in Vienna. It is the owner and publisher of the weekly magazine News.
8. On 2 November 2000 the applicant published an article in News in which it reported about pending investigations on suspicion of large scale tax evasion against Mr G., the managing director of a well-known enterprise producing pistols. The article was accompanied by a picture of Mr G.
9. The report informed the reader that Mr G.'s premises had been searched in the early hours of 31 October. He was suspected of having evaded taxes of up to 500 million Austrian Schillings (more than 36 million euros). The article stated that News was in the possession of numerous documents (letters from Mr G.'s lawyers, a court file from Luxembourg, costs calculations and lists of clients of the G. company, etc.) concerning this suspicion which it claimed to have obtained through its own intense research. The most important documents were letters from Mr G.'s lawyers from which it followed that an attempt to murder Mr G. had taken place in Luxembourg in 1999, which had not come to the attention of the Austrian authorities or of the media at the time. The attempt had possibly been made at the instigation of one of Mr G.'s business partners who, according to his lawyer, had acted as a trustee for him. The article then assumed that the attempt was somehow linked to Mr G.'s network of companies which had been scrutinised by the tax authorities. It quoted an anonymous tax official as saying that according to the investigations dubious companies with a seat abroad had issued invoices for “organisational services” to the G. company in order to reduce its gains in Austria. Still according to that tax official the complex structure of interrelated companies had been chosen to dissimulate the fact that Mr G. was their owner and to avoid the legal consequences of that fact. The article finally said that Mr G. also had close links with the Austrian Freedom Party (Freiheitliche Partei Österreichs), of which it gave a few examples, and that thus, the case also had a political dimension.
10. Subsequently Mr G. (“the claimant”) brought proceedings under Section 78 of the Copyright Act (Urheberrechtsgesetz) against the applicant company, requesting that the latter be prohibited from publishing his picture in connection with reports both on the pending tax evasion proceedings against him and on the attempted murder.
11. On 28 December 2000 the Vienna Commercial Court (Handelsgericht), granting the request in part, issued a preliminary injunction (einstweilige Verfügung) against the applicant company prohibiting it from publishing a picture of the claimant in the context of reports on charges of tax evasion against him, in so far as he was not described as a suspect, but as having committed the offence, until a final decision would be taken in the main injunction proceedings.
12. The court noted that, when assessing whether a person was entitled to protection of his or her picture under Section 78 of the Copyrights Act in the context of criminal proceedings, the respective interests had to be balanced in the light of the criteria developed in Sections 7a and 7b of the Media Act (Mediengesetz). The court noted that the applicant was a business magnate. His enterprise was the market leader in equipping police forces with pistols. Although the claimant was well-known in professional circles he was not known to the public at large and his picture had only been published in arms producers' magazines so far. Nevertheless, the subject-matter, namely tax evasion proceedings pending against an industrial magnate whose enterprise was well-known and prestigious in Austria, was of public interest. Referring to Section 7a § 2 (2) of the Media Act, the court considered that the public interest in receiving such information outweighed the claimant's interest in the protection of his identity. The court concluded that reporting on this topic and publishing the claimant's picture was in principle allowed, as long as it did not violate his right to be presumed innocent (Section 7b of the Media Act) as was the case for the passage of the article quoting the tax official which described the suspicion against Mr G. as if it were already proven.
13. Referring to Section 7a § 2 (1) of the Media Act, the court dismissed the claimant's request that the applicant company be prohibited from publishing his picture in the context of reports on the attempted murder of which he had been the victim. It found that there was a public interest in the reporting which was not outweighed by the claimant's interest in the protection of his identity, since the report did not interfere with his strictly private life or lead to his public exposure.
14. On 26 April 2001 the Vienna Court of Appeal (Oberlandesgericht) upheld this decision.
15. On 10 July 2001 the Supreme Court (Oberster Gerichtshof), allowing the claimant's appeal in part, widened the scope of the preliminary injunction to the extent that the applicant company was prohibited from publishing any pictures of the claimant in the context of reports on the tax evasion proceedings pending against him, irrespective of the accompanying text.
16. The court found that the lower courts had failed to take into account the nature of the offence which was at stake, when applying the above-mentioned provisions of the Media Act. It noted, in particular, that the claimant was a suspect of tax evasion, which was a lesser indictable offence (Vergehen), within the meaning of Section 7a § 2 (2) of the Media Act, in which case the claimant's legitimate interests were injured by a disclosure of his picture. In such cases, the claimant's interest in a protection of his picture prevailed over the public interest in its publication.
17. 's interest not to have his picture published in the context of reports on pending tax evasion proceedings against him outweighed the public interest to receive such information. In that context the court noted in particular that the investigations for tax evasion were not public and the officials of the tax authorities were bound by the fiscal secret. Thus, there was no public interest in receiving such information together with the picture of the suspect, irrespective of the manner in which the applicant had obtained the information. Even if the applicant had managed to obtain information on the tax evasion proceedings without inciting officials to breach the fiscal secret, the information was meant to be secret and there was no legitimate public interest in receiving it.
18. The Supreme Court's decision was served on the applicant on 5 September 2001.
19. Section 78 of the Copyright Act, in so far as relevant, reads as follows:
“(1) Images of persons shall neither be exhibited publicly, nor in any way made accessible to the public, where injury would be caused to the legitimate interests of the persons concerned or, in the event that they have died without having authorised or ordered publication, those of a close relative.”
20. Starting with its judgment of 23 September 1997 (4 Ob 184/97, MR 1997, 302) the Supreme Court has consistently held that, in the context of reports on criminal proceedings, Section 78 pf the Copyright Act has to be interpreted in the light of Section 7a of the Media Act.
21. The relevant provisions of the Media Act read as follows:
“(1) Where publication is made, through any medium, of a name, image or other particulars which are likely to lead to the disclosure to a larger not directly informed circle of people of the identity of a person who
1. has been the victim of an offence punishable by the courts, or
2. is suspected of having committed, or has been convicted of, a punishable offence,
and where legitimate interests of that person are thereby injured and there is no predominant public interest in the publication of such details on account of the person's position in society, of some other connection with public life, or of other reasons, the victim shall have a claim against the owner of the medium (publisher) for damages for the injury suffered. The award of damages shall not exceed 14,535 euros; additionally, Section 6 (1), second sentence, shall apply.
(2) Legitimate interests of the victim shall in any event be injured if the publication
1. in the case of subsection (1) 1 is such as to give rise to an interference with the victim's strictly private life or to his or her exposure,
2. in the case of subsection (1) 2 relates to a juvenile or merely to a lesser indictable offence (Vergehen) or may disproportionately prejudice the victim's advancement. ...”
“(1) Where a person who is suspected of having committed a punishable offence but has not been finally convicted is portrayed in a medium as guilty, or as the offender and not merely a suspect, the victim shall have a claim in damages against the owner of the medium (publisher) for the injury suffered. The award of damages shall not exceed 14,535 euros; additionally, Section 6 (1), second sentence, shall apply. ...”
22. Pursuant to Article 17 of the Criminal Code (Strafgesetzbuch) lesser indictable offences are all offences punishable with less than three years' imprisonment.
VIOLATED_ARTICLES: 10