ITEMID: 001-66609
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: C. and D. and S. and OTHERS v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Matti Pellonpää;Nicolas Bratza
TEXT: The applicant S., in application no. 34593/02, is a United Kingdom national born in 1964 and resident in Torbay. She brings this application on her own behalf and on behalf of her children, A., born in 1991, and B. born in 1992, also United Kingdom nationals. She is represented by Ms N. Mole, of the AIRE Centre, London.
The applicants in application no. 34407/02, C. and D., born in 1992 and 1989, are represented by their guardian and solicitor, Mr P. Perusko, a solicitor practising in Bedford and are also United Kingdom nationals.
The facts of the case, as submitted by the parties, may be summarised as follows.
S. met the father of A. and B. in 1987. They started to cohabit in 1989. She already had a son P. from a previous relationship. In 1991 A., a boy, was born and B., a girl, was born in 1992.
Serious problems emerged in the family in May 1999 when P ran away from home. He alleged that his stepfather, the father of A. and B., had repeatedly beaten him. Torbay Council arranged a foster placement. The father denied the allegations and S. supported him. At a case conference in November 1999, the father was arrested for threatening behaviour. He was subsequently charged and sentenced to community service. Torbay Council issued applications for a care order in respect of P. and supervision orders in respect of A. and B.
In May 2000, P. made allegations of sexual abuse against his stepfather. A child protection investigation followed. The stepfather denied the allegations, supported by S.
On 7 June 2000, A. and B. were taken into care pursuant to an emergency protection order and placed in foster care.
In July 2000, S. separated from A. and B.’s father.
While the paediatric examinations of A. and B. were inconclusive, an expert reported that the father presented an unacceptable risk to them and that S., their mother, was unable to protect them. He recommended therapy for the mother.
Torbay Council sought care orders for all three children. Its care plan for P. was that he should remain in care. The care plan for A. and B. was to attempt to rehabilitate them with S.
On 1 November 2000, after a hearing, the County Court judge found that the father had sexually abused P. and beaten the children with a slipper. She also found that S. had failed to protect them. While it was agreed that there should be a care order in respect of P., there was some debate as to the orders to be made in respect of A. and B. S. and the children’s guardian elicited assurances from Torbay Council on the package of support and treatment available to the family which was needed to make rehabilitation viable. S.’s counsel sought some guarantee of performance, or a safeguard in respect of breach. She argued, inter alia, that it was neither necessary nor proportionate for a care order to be made on the footing that all power and responsibility should pass to Torbay Council. S. was sceptical, on past experience, whether Torbay Council would carry out the care plan for A. and B. She contended that only interim care orders should be made while the children’s guardian sought final care orders. The judge made final care orders in respect of all three children expressing confidence that Torbay Council would implement the care plan. The applicant appealed.
The care plan had envisaged reunification within 6-9 months. Within the four and a half months which followed between the orders and the appeal hearing, little happened. Meetings occurred between S. and the social worker assigned to A. and B. None of the planned family therapy work took place. No social worker was provided to assist S. The Hillside Family Centre programme was not started until March 2001. No therapy was started for the mother. The Court of Appeal later called this a “striking and fundamental failure” to implement the care plan and noted that most of the assurances given by the social workers and accepted by the guardian ad litem and judge had proved vain. It found that this was not a matter of bad faith and that the principal cause of the failings was a financial crisis within the authority leading to substantial cuts in the social services budget. The sad history of potentially disastrous failure fully vindicated the line taken by S.’s counsel at trial.
The two brothers, C. and D., were born in 1989 and 1991 respectively, to an American mother and British father. The parents had a volatile relationship with periods of separation.
Concern arose as to the parents’ ability to meet the children’s needs centring on the parents’ relationship and the mother’s mental health. In 1999, anxiety deepened. The mother made allegations about the father which were not substantiated. The mother’s conduct deteriorated. Her medical history included diagnoses of borderline personality disorder and bipolar disorder. There was concern about the children’s emotional development.
On 2 September 1999, Bedfordshire County Council (“the Council”) applied for care orders and moved the children into foster care under an emergency protection order. The Council’s final care plan was that the children should be placed with the maternal grandparents with continuing direct contact for both parents. The grandparents who lived in the USA agreed to move to England. The children were to remain in foster care until they arrived. The children’s guardian supported this placement. During the period leading up to the hearing, both parents showed significant progress in understanding their own problems and those of the children and made efforts to work with the various doctors and experts engaged in the case. The mother, now conclusively diagnosed as having bipolar disorder and a personality trait, had come to accept her mental illness and the need for treatment and medication. The parents were living together again and wished to have the children returned.
On 20 November 2000, the County Court commenced hearing evidence on the care applications. In his judgment on 11 December 2000, the judge stated that there was no question of ruling the parents out in the longterm but, for the present and near future, concluded that the children were unable to return safely to their parents: “possibly, or even probably, it may be appropriate in 12 to 18 months, but not now.” All the parties agreed that the maternal grandparents would be suitable carers, although the evidence that they would in fact be able to move to England was “exiguous in the extreme”. The judge described the care plan as inchoate because of all the uncertainties involved, not only concerning the grandparents but also the outcome of further assessment and therapy for the boys, the final outcome of marital work for the parents and the possibility of improvements with the mother’s personality traits. Nonetheless, the judge made care orders for both children.
The parents applied for and obtained permission to appeal, submitting that the judge had erred in granting a final care order when so many issues were uncertain. Meanwhile, there was delay in the maternal grandparents obtaining residence and work permits and the boys were moved due to their foster mother suffering an accident.
The Court of Appeal heard appeals in both cases together.
In its judgment of 23 May 2001, the Court of Appeal proposed adopting a new approach to meet the situation where the judge’s evaluation of what was in the best interests of a child risked conflicting with events as they occurred after a final care order had been made. It was noted that while the parents might have the right to apply to the courts under section 7 of the Human Rights Act 1998 alleging a fundamental failure to implement a care plan, there was no person to act for a child if the parent did not choose to act. The guardian would have ceased to act and would no longer have any supervisory authority.
First, the court enunciated guidelines intended to give trial judges a wider discretion to make an interim care order, rather than a final order.
Second, in an innovation described by the House of Lords as “radical”, the Court of Appeal propounded a new procedure for the period after the making of a care order by which at trial the essential milestones of a care plan would be identified and elevated to a “starred status”. If a starred milestone was not achieved within a reasonable time after the date set at trial, the local authority would be obliged to “reactivate the interdisciplinary process that contributed to the creation of the care plan”. The local authority would at least have to inform the child’s guardian. Either the guardian or the local authority would then have the right to apply to the court for further directions.
As regarded the Torbay case, the Court of Appeal considered the outcome finely balanced and declined to disturb the judge’s order. It was noted that the children might have remedies under the Human Rights Act if necessary but that meanwhile there had been sufficient progress in the case to make further referral to the High Court an unnecessary distraction in the case.
As regarded the Bedfordshire case, it was clear that the care plan was insufficiently mature and that the judge had wanted more time to await developments but had been constrained by case-law to make the full care order. The judge should have insisted on more information before making the order or on a report back if matters did not turn out as expected. It allowed the appeal in that case, replacing the final care order with an interim one and remitting the case to the judge for further consideration.
S. appealed in the Torbay case while the Secretary of State and Bedfordshire Council, supported by Torbay Council, appealed against the reasoning of the Court of Appeal, although not against the substantive orders made.
Meanwhile, on 2 July 2001, the judge in the Torbay case starred various items in the final care plan: a parenting assessment was to be completed by 6 July 2001, a course of therapy for S. was to be completed by 7 September 2001 and a decision about the immediate goals of the care plan (reunification with S. or long term foster care) was to be made by 7 September 2001. She directed Torbay Council to provide a progress report to the children’s guardian, or in the absence of the guardian, to the court if a starred element was not achieved within 14 days of the specified dates. By the time of the House of Lords hearing, it was stated that the starred plan was working well and the children’s interests were being met.
In the Bedfordshire case, setting aside the final care order had the unfortunate consequence of augmenting uncertainty. The maternal grandparents were reluctant to move to England without a final care order. On 24 October 2001, the judge made a final care order with the consent of the guardian and without any opposition from the parents. The care order was not starred. The agreement attached to the care order which was intended to supplement the care plan, indicated that the children would be in the care of the Council, that the maternal grandparents would be encouraged to move to the area as soon as possible and that it was in the best interests of the children for the legal proceedings to end. It was recorded that the parents believed that the family would be rehabilitated within two years and that the parents would apply to discharge the care order in the event that the children had not been placed with the grandparents by 31 March 2002, the grandparents became unable to care for the children or the children were not rehabilitated to the parents’ care within two years. It was further agreed that the Council would convene a statutory review in October 2003 at which the issue of rehabilitation would be specifically considered.
In its judgment of 14 March 2002 (Re S (Minors) Care Order: Implementation of Care Plan) and Re W (Minors) (Care Order: Adequacy of Care Plan) [2002] 1 FLR 815), the House of Lords rejected S.’s appeal and allowed the appeal of the local authority.
The headnote of the reported case summarised the judgment as follows:
“(1) Parliament had set out its clear intention in the Children Act 1989 that once a care order had been made, the responsibility for the child’s care thereafter lay with the authority, not with the courts, and the courts were not empowered to intervene. The division of responsibility was a cardinal principle of the Act. The introduction of a system which gave the court a supervisory role following the making of a care order went beyond the bounds of the court’s judicial jurisdiction because it involved a substantial departure from one of the cardinal principles of the Act. Section 3 of the Human Rights Act 1998 required primary legislation to be read and given effect in a way compatible with Convention rights, so far as was possible, but the judicial innovation of starred milestones passed well beyond the boundary of interpretation and would constitute amendment. The starring system could not be seen as a mere judicial remedy for victims of actual or proposed unlawful conduct by local authorities entrusted with the care of children, justified by ss 7 and 8 of the 1998 Act, as the proposed system would impose obligations on authorities in circumstances where there had been no finding of unlawful conduct and, indeed, no breach or proposed breach of the Convention ...
(2) The Children Act 1989 was not itself incompatible with or inconsistent with Art 8 of the Convention. Infringement of the right to respect for family and private life was only likely to arise if a local authority failed properly to discharge its responsibilities under the Children Act 1989; those responsibilities were not themselves an infringement of rights under Art 8. It might be that there was a failure to provide an effective remedy against local authority infringements of rights under Art 8, as while parents would have an effective remedy in the judicial review process or through proceedings under s 7 of the Human Rights Act 1998, in practice a child with no parent to act for them might not always have such a remedy, but that was not in itself an infringement of Art 8. Under the Convention, failure to provide an effective remedy for infringement of a Convention right was an infringement of Art 13, but Art 13 was not a Convention right under the Human Rights Act 1998. Therefore, legislation which failed to provide an effective remedy for infringement of Art 8 was not, for that reason, incompatible with a Convention right within the meaning of the Human Rights Act 1998 ...
(3) Circumstances might perhaps arise in which English law relating to some decisions by local authorities concerning care of children would not satisfy the requirements of Art 6(1) ... The failure to provide access to a court as guaranteed by Art 6(1) meant that English law might be incompatible with Art 6(1), but the absence of such a provision from a particular statute did not mean that the statute itself was incompatible with Art 6(1). The absence in the Children Act 1989 of effective machinery for protecting the civil rights of young children with no parent or guardian was a statutory lacuna, not a statutory incompatibility. The inability of parents or children to challenge in court care decisions, however fundamental, made by a local authority while a care order was in force, was a different matter. Judicial review apart, the opportunity to challenge such decisions in court would be in conflict with the scheme of the 1989 Act. The issue of whether in this respect the Children Act 1989 was incompatible did not arise in this case, as the parties concerned had not lacked a court forum in which to express their concern at the lack of progress ...
(4) Interim care orders were not intended to be used as a means by which the court might continue to exercise a supervisory role over the local authority in cases in which it was in the best interests of a child that a care order should be made. Problems had arisen about how far courts should go in attempting to resolve the uncertainties within care plans before making a care order. Where an uncertainty needed to be resolved before the court could decide whether it was in the best interests of the child to make a care order at all, the court should finally dispose of the matter only when the material facts were as clearly known as could be hoped. Some uncertainties relating to the details of the care plan were suitable for immediate resolution, in whole or in part, by the court in the course of disposing of the care order application; other uncertainties could and should be resolved before the court proceeded, during a limited period of ‘planned and purposeful’ delay. Frequently the uncertainties involved in a care plan could only be worked out after the making of an order. Despite all the inevitable uncertainties, when deciding to make a care order the court should normally have before it a care plan which was sufficiently firm and particularised for all concerned to have a reasonably clear picture of the likely way ahead for the child in the foreseeable future. The degree of firmness to be expected, as well as the amount of detail in the plan, would vary from case to case, but if the parents and the child’s guardian were to have a fair and adequate opportunity to make representations to the court on whether a care order should be made, the care plan must be appropriately specific. The court must always maintain a proper balance between the need to satisfy itself about the appropriateness of the care plan and the avoidance of over-zealous investigation into matters which were the responsibility of the local authority.”
Lord Nicholls noted that the court would only ordinarily grant relief to a person who was victim of an actual and proposed breach of a Convention right. In the Torbay case, the problem had been essentially “drift” in the implementation of the care plan. In practice however, the mother, S., had not lacked a court forum in which to express her deep concern. Her appeal enabled her to raise these matters in the Court of Appeal and the intervention of that court appeared to have galvanised the local authority into taking the necessary action, if belatedly.
He went on to state:
“I must finally make an observation of a general character. In this speech I have sought to explain my reasons for rejecting the Court of Appeal’s initiative over starred milestones. I cannot stress too strongly that the rejection of this innovation on legal grounds must not obscure the pressing need for the Government to attend to the serious practical and legal problems identified by the Court of Appeal or mentioned by me. One of the questions needing urgent consideration is whether some degree of court supervision of local authorities’ discharge of their parental responsibilities would bring an overall improvement in the quality of child care provided by local authorities. Answering this question calls for a wider examination than can be undertaken by a court. The judgments of the Court of Appeal in this case have performed a valuable service in highlighting the need for such an examination to be conducted without delay.”
In the Torbay case, the Council had decided that long term reunification should be the stated goal of the care plans of A. and B. S. had continued to receive therapy after September 2001, in particular regarding her re-instigation of contact with the children’s father. Contact was suspended in November 2001 as a result of S.’s renewed contacts with the father but resumed after Christmas 2001 and ad hoc overnight stays had taken place by 6 February 2002. The care plans were amended in light of changed circumstances so as to state that shared care (between S. and a children’s home or foster family) was the immediate goal. By February 2003, the children were regularly staying with S. at weekends. The most recent review meeting in August 2003 recorded that the care plan was for shared care, with up to three nights per week with S., together with long term foster placements for A. and B. However, contact is currently less than that, due to difficult behaviour by A. and B.
In the Bedfordshire case, the grandparents moved to the United Kingdom, with financial assistance, and the children were duly placed with them on 19 December 2001. They had contact with their parents two to three times a week. By March 2002, a dispute had arisen between the parents and the Council as to the appropriateness of overnight contact. The parents intimated that they might apply to the court under section 34 of the Children Act 1989 to increase their contact rights but did not do so. Contact gradually increased and overnight contact began on 17 August 2002. From September 2002, the children stayed alternate weekends with their parents and after a review in February 2003 this was increased to three weekends per month. At the end of May 2003, a dispute arose as to whether the children should return permanently, which the local authority considered could not yet occur due to lack of compliance with the relevant regulations, in particular that a written agreement be reached with the parents as to various matters. The parents again intimated that they might apply to the court for increased contact but did not do so. By 12-13 June 2003, the children had been formally placed with their parents. At a further review on 9 September 2003, the chairperson of the statutory review considered that an application should be made to discharge the care order although family support would continue. The Council however considered that there should be a further period of assessment.
Under section 31 of the Children Act 1989 (“the 1989 Act”), on the application of any local authority or authorised person, the court may make an order placing the child in the care of a designated local authority (“a care order”). The preconditions under section 31(2) are that the court must be satisfied that the child is suffering, or likely to suffer, significant harm; and that the harm is attributable to the care given, or likely to be given, not being what it would be reasonable to expect a parent to give. There is no power under the Act for a care order to be made on terms, or accompanied by directions, whether in accordance with a care plan or otherwise. A care plan may be discharged (section 39(1)) or substituted by a supervision order (section 39(4)). An interim care order may be made under section 38(1) which lasts for eight weeks initially and if renewed for four weeks. The judgment of Lord Nicholls in this case is regarded as the leading authority on the scope for the granting of interim care orders, namely, as a temporary “holding” measure where the care plan seems inchoate or where the passage of a relatively brief period seems bound to see the fulfilment of some event or process vital to the planning and deciding the future. An interim care order is not a means of exercising a supervisory role over the local authority’s implementation of its care plan but gives the court sufficient flexibility to defer making a final order until satisfied that the way ahead is no longer obscured by an uncertainty that is neither inevitable nor chronic.
In deciding whether to make a care order, the court must have before it the details of the local authority’s proposed care plan. This is to be put on a statutory footing by new legislation. Section 121 of the Adoption and Children Act 2002 will insert a new section 31A in the Act requiring a care plan to be prepared by the local authority for the purposes of any application which may result in the making of an order. According to the Government, this was expected to come into force in September 2004.
Once a care order has been made, a court retains jurisdiction over two aspects:
under section 34, the local authority must allow the child reasonable contact with his parents and the court can adjudicate on any dispute as to what is reasonable contact or to vary or discharge any contact order;
the court may entertain an application by the local authority, parent or child, to discharge the care order or substitute some other order e.g. a supervision order.
Section 41 provides for the appointment by the court of a “Children’s Guardian” (an officer of the Children and Family Court Advisory and Support Service “CAFCASS”) for the purposes of specified proceedings e.g. applications for the making or discharge of care and supervision orders. CAFCASS’s primary function is to safeguard and promote the welfare of children. When the court rules on an application, the Guardian’s role comes to end. There is no statutory provision for Guardians to have a role outside active court proceedings.
Section 118 of the 2002 Act provides for the appointment by the local authority of an “independent reviewing officer” (“IRO”). The IRO is independent of the line management involved in the child’s case and his/her role is to participate in statutory reviews, monitoring the authority’s functions and referring the case to CAFCASS if appropriate. Referral allows a Children’s Guardian to take any necessary action through the courts by acting for the child either in proceedings for judicial review or freestanding claims under the Human Rights Act 1998 (“HRA”). The IRO may also refer a child to a solicitor directly if legal assistance is considered more appropriate.
An aggrieved party may appeal the making of a care order to the court on the basis that it was not justified in the circumstances e.g. that the order breaches the Article 8 rights of the parents or children (section 7(1)(b) of the HRA).
Representations to the local authority may also be made by parents and children at the statutory reviews which take place after four weeks, three months and then every six months after the care order. The local authority is required to seek the views of all relevant parties. The local authority must also make available a complaints procedure, involving the participation of at least one person independent of the local authority (section 26 of the 1989 Act). Complaint may also be made to the Local Government Ombudsman if any interested party is unhappy about the discharge by a local authority of its functions under the Act. The Ombudsman can investigate complaints of maladministration (e.g. bias, neglect, incompetence, arbitrariness) and issue recommendations as to the steps which the authority should take to remedy the injustice to the person aggrieved (see the Local Government Act 1974).
Applications may be made to the courts under the 1989 Act concerning contact arrangements or discharge of the care order.
Any decision of a local authority in relation to a child in its care may be subject to judicial review in the Administrative Court. Judicial review does not provide an appeal on the merits of a decision. Grounds of challenge include illegality, irrationality, impropriety, material error of fact, acting for an improper purpose, failure to take into account relevant considerations, or taking into account irrelevant considerations. Judicial review proceedings may also include a complaint of breach of Convention rights, pursuant to section 7(1) of the HRA. The HRA also confers a free-standing right of complaint in the ordinary courts where it is alleged that a local authority has breached Convention rights in its decision-making in relation to a child in its care.


ITEMID: 001-98443
LANGUAGEISOCODE: ENG
RESPONDENT: ISL
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF VÖRĐUR ÓLAFSSON v. ICELAND
IMPORTANCE: 1
CONCLUSION: Violation of Art. 11
JUDGES: Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: 6. The applicant, Mr Vörður Ólafsson, is an Icelandic national who was born in 1961 and lives in Reykjavik.
7. The applicant is a master builder and is a member of the Master Builders’ Association (“the MBA”). Under the Industry Charge Act (Law no. 134/1993 – “the 1993 Act”), he was under an obligation to pay a levy known as the “industry charge” to the Federation of Icelandic Industries (“the FII”), an organisation of which the applicant was not a member and to which the MBA was not affiliated. The 1993 Act provided that a charge of 0.08% should be levied on all industrial activities in Iceland as defined in the Act. The definition included all activities coming under activity code numbers enumerated in an appendix to the Act. Private-sector enterprises not covered by the code numbers were not subject to the industry charge. This was the case, for example, for enterprises in the meat-processing, milk-processing and fish-processing industries. Other enterprises in the food and drink industry were covered. Enterprises entirely under public ownership or established by special statute were not covered (section 2). Revenues from the industry charge were to be transferred to the FII, and were to be used for the promotion and development of industry in Iceland (section 3). The State Treasury was to receive 0.5% of the charge collected in order to cover the costs of its collection (section 1).
8. More than 10,000 persons (legal persons and self-employed individuals) paid the industry charge. The FII had between 1,100 and 1,200 members (enterprises and self-employed individuals).
9. The Government supplied copies of the FII’s reports to the Ministry of Industry regarding the disbursement of the industry charge for the years 2000, 2003 and 2006.
10. The FII’s report for the year 2003 (dated 4 July 2004) stated:
“The Federation’s accounts have not indicated whether particular operational items are paid for with funds from membership fees, capital income or the industry charge, because an overwhelming proportion of its work benefits industrial companies whether they are members of the Federation or not. The Ministry of Industry has not expressed any reservation regarding this arrangement, and legislation concerning the industry charge imposes no other requirements.
The Federation and the Ministry of Industry are, however, in agreement about the requirement for a more detailed account of how the industry charge is disbursed, and that has been done in this report.”
11. Under the title “Disbursement of the industry charge in 2003 according to the Federation’s accounts”, the report included a table showing the “Income and expenditure according to the Federation’s audited accounts for the year 2003”. In a separate column the table indicated the percentage of funds originating from the industry charge in relation to each item and sub-item. This included the following items: “Operating profits” and “Operating expenses”. It also detailed “Further itemisation of disbursement of the industry charge according to the accounts”, namely: (1) “Wages and related expenses”; (2) “Meetings and conferences”; (3) “Promotional activities”; (4) “Publications”; (5) “Branches and special projects”; and (6) “General and administrative expenses”.
For each of these sub-items the report contained explanatory notes, providing information on the treatment of members as compared with non-members. For example, under sub-item (1) it was stated that 2.5 of the 20 man-years concerned work that benefited members only. With reference to sub-item (3) it was stated that FII exhibitions were open to everyone and that FII members enjoyed a discount on participation fees. Under sub-item (5) it was stated that non-members could access the quality management project but would be charged a higher fee than members.
12. From the table it appears that in 2003 the FII’s operating revenues totalled 315,800,000 Icelandic krónur (ISK), of which ISK 197,359,000 had originated from the industry charge transferred to the FII by the State Treasury; ISK 84,973,000 from membership fees; and ISK 33,468,000 from other income. That same year, the operating expenses had totalled ISK 289,654,000, of which ISK 234,617,000 (81%) had been spent on public projects (comprising ISK 197,359,000 derived from the industry charge and ISK 37,258,000 from membership fees and other income).
13. The Government explained that in fulfilling its role and objectives of promoting Icelandic industry pursuant to section 3 of the 1993 Act, the FII notably worked to develop and protect the image of the industry, allocated large amounts of the funds obtained though the industry charge to training, gave opinions on behalf of the business community on draft legislation and regulations in the sphere of environmental affairs, and instilled in public authorities the need to observe restraint in public procurement and to observe clear and transparent tender rules.
14. At the material time, the applicant paid the following amounts in industry charge for the years indicated: for 2001 ISK 23,023 (255 euros (EUR)); for 2002 ISK 20,639 (EUR 229); for 2003 ISK 12,567 (EUR 139); and for 2004 ISK 5,946 (EUR 66).
15. On 8 November 2004 the applicant lodged proceedings against the State with the Reykjavik District Court, requesting an order to exempt him from the charges imposed on him in respect of the years 2001 to 2004.
16. By a judgment of 13 July 2005, the District Court found in favour of the State and dismissed the applicant’s action.
17. The applicant appealed to the Supreme Court of Iceland, arguing, inter alia, that section 3 of the 1993 Act meant that all individuals and companies engaged in particular business activities had to pay membership fees to the FII, irrespective of whether they were members or not. The applicant considered that Article 14 of the Articles of the Federation, which provided for the membership charge, clearly reflected its nature in that, as was provided therein, FII members paying an industry charge which was transferred to the FII should have that part deducted from their membership fees. Thus, by the levy and collection of the charge, membership of the FII was in fact made compulsory for others, although they enjoyed no rights vis-à-vis the FII. Consequently, the industry charge was merely a membership fee to the FII. The applicant submitted that he was a member of the MBA, to which he paid his fees and through which he considered his interests to be best served, and he had no wish to be a member of the FII. The latter pursued policies with which he disagreed and which were contrary to his own interests. The compulsory membership of the FII was incompatible with his right to freedom of association as protected by Article 74 § 2 of the Icelandic Constitution and Article 11 of the Convention. The applicant also argued that by virtue of the 1993 Act, he was unjustifiably taxed in excess of other taxes and that, under the Act, a limited group was being taxed “for the benefit of another limited group or the restricted interests of others”. Finally, he submitted that the imposition of the charge amounted to discrimination in breach of Article 65 of the Constitution, as the taxation was dependent upon the ownership structure of an enterprise, and the enumeration of activity code numbers, on which the taxation was based, was haphazard in nature.
The State disputed the applicant’s submission that the industry charge constituted a membership fee to the FII. They argued that by law it was a tax levied by the State on particular groups of individuals and legal persons, in accordance with general and applicable standards, without anything being required in return. By the same Act, the decision had been taken to have the charge transferred to the FII, which was to use it for the promotion and development of Icelandic industry. Such an allocation of tax revenues to an association provided for by law did not mean that those who paid the relevant tax were thereby obliged by law to become members of it. The charge was not expected to be used for the benefit of the members alone, but for the benefit of all industries and industrial development in Iceland, under the supervision of the Ministry of Industry. Any discounts on membership fees were decided unilaterally by the FII, without any connection to the assessment and collection of the charge. The State also denied that the 1993 Act involved discrimination between persons who were in the appellant’s situation and those who enjoyed an exemption from the charge. It was a reasonable and objective arrangement to exempt public enterprises from the charge, and it was in the nature of things that the considerations that applied to companies under public ownership were different from those relating to private enterprises. The State also argued that public support for industry and industrial development sometimes took the form of launching industrial activities that others were not capable of initiating. Finally, the number of publicly owned industrial enterprises had been greatly reduced in recent years. The State also disputed the allegation that the enumeration of activity code numbers governing the taxation had been haphazard.
18. By a judgment of 20 December 2005, the Supreme Court, by four votes to one, rejected the applicant’s appeal and upheld the District Court’s judgment. It held as follows:
“As mentioned in the District Court’s judgment, the Supreme Court rendered a judgment on 17 December 1998 in case no. 166/1998, Gunnar Pétursson v. the Republic of Iceland, published at page 4406 of the Court’s Reports for that year. The appellant in that case requested an exemption from his liability to pay the industry loan fund charge and the industry charge for the years 1995 and 1996. He based his case on arguments that are to a significant degree identical to those invoked by the appellant in the present case. The Supreme Court accepts the view of the respondent in that the above-mentioned case must be regarded as the precedent in the case now to be determined, to the extent that the issues raised by the appellant in support of his present claim were determined in that case.
In the earlier case the appellant, as here, maintained that as a result of his liability to pay the industry charge, which is to be transferred to the Federation of Icelandic Industries, he was obliged to be a member of the Federation. The Supreme Court mentioned in its judgment that although the charge was transferred to the Federation, it was to be used for a certain purpose (see section 3 of the 1993 Act), and did not constitute a grant to the Federation. The use of the revenues was subject to the supervision of the Ministry of Industry. The Court accepted that this arrangement did not involve obligatory membership of the Federation of Icelandic Industries in breach of the Constitution and the European Convention [on Human Rights]. It also noted that even if the Federation of Icelandic Industries had exceeded the boundaries laid down in the [1993] Act, this could not have the effect of exempting the appellant from paying the charge. With this in mind, and in other respects by reference to the grounds stated in the contested judgment, the Court must reject the conclusion that the appellant’s arguments in this regard may lead to a granting of his request. Bearing in mind that the Federation of Icelandic Industries is under a legal duty to use the revenues from the industry charge for promoting Icelandic industries and industrial development, and consequently for the benefit of the activities being taxed, the Court cannot accept that the legislature thus exceeded its powers.
The appellant submits that equality was not respected, since enterprises under public ownership may be exempted from the charge. As regards this argument, it must be noted that various factors distinguish enterprises under public ownership from privately owned enterprises, and in various fields their taxation is governed by different considerations, as seen in Icelandic tax legislation in general. In his written submissions, the appellant did not present a comparison of his situation vis-à-vis any particular public enterprises. It has not been established that any discrimination has taken place between the appellant and the parties to whom the exemptions of the [1993] Act apply. Finally, the appellant bases his request on the assertion that the activity code enumeration, by reference to which taxation under section 2(1) of the 1993 Act takes place, is haphazard in nature. The charge is levied on industry, subsequently defined as any activity coming under the activity code numbers enumerated in the classification of Icelandic business activities in an appendix to the 1993 Act, as amended by Law no. 81/1996. Industry, thus defined, does not only cover manufacturing industry, but also processing and services, including the construction industry. This defines the activities to be included under the term ‘industry’ within the meaning of the [1993] Act, distinguishing them from other fields of economic activity, including activities that have developed within the fields of agriculture and fishing. Such classification of economic activity has furthermore been recognised as a basis for other forms of taxation other than the industry charge. The appellant’s claim cannot be granted on the basis of the arguments presented.”
19. The dissenting member of the Supreme Court, Mr Justice Ólafur Börkur Þorvaldsson, gave a separate opinion containing, inter alia, the following reasons:
“I
The original Industry Charge Act was Law no. 48/1975. It was stated in the explanatory notes to the draft law that it had been submitted in accordance with a recommendation of the FII, the National Federation of Craftsmen, and the Union of Icelandic Cooperative Societies. These provided a detailed report, which apparently was adopted verbatim in the explanatory notes. It included the observation that ‘... it may be noted that industrial enterprises and self-employed persons in industry collect various taxes for public authorities, both from their employees and from the consumers. The tax collection they carry out and are responsible for amounts to thousands of millions annually, entirely without remuneration. It therefore seems reasonable that the State should undertake to collect, by way of compensation for these parties, a charge which amounts to only a small fraction of what they collect for the State. This source of revenue should create a financial basis for more active participation by professional federations within Icelandic industry in shaping future industrial development’. The Act also contained a provision similar to that of the Act now in effect, that the Ministry of Industry should be sent an annual report on the use of the revenues derived from the charge. In this context, it was mentioned in the explanatory notes that this was a ‘provision intended to ensure that public authorities will be given a reasonable account of how the industry charge is used’.
Law no. 48/1975 was superseded by the present Law no. 134/1993. It was stated in the explanatory notes to the [1993] Act that those liable for the charge would be the same as before, but a system of reference to activity code numbers in accordance with the business activity classification of the Bureau of Statistics was adopted in order to ‘remove any doubt as to who are liable for this charge’. It was furthermore provided that the revenues derived from the charge should be transferred to the FII in their entirety, whereas under the previous Act they had been distributed between the Union of Icelandic Cooperative Societies, the Canning Industry Sales Office, the Federation of Icelandic Industrialists and the National Federation of Craftsmen. At the same time the tax base was changed, since the municipal business tax, on which the level of tax had previously been determined, had been abolished.
II
According to the Articles of its Statute, the FII is a federation of enterprises, self-employed persons, trades and master builders’ associations, who jointly wish to pursue common goals as enumerated in Article 2. This Article states the purpose and role of the Federation in ten points, as involving the promotion of Icelandic industries in various ways and supporting the members by all the means which are detailed therein. According to the documents submitted, the association involves itself with political issues, for example as regards membership of the European Union and taxation in various fields. Pursuant to Article 8, each member of the Federation enjoys voting rights at its meetings in proportion to his paid membership fees. It is provided in Article 14 that the membership fees are a maximum of 0.15% of the previous year’s turnover, but the board of the Federation may decide to collect lower membership fees. The provision goes on to state that ‘[p]arties paying an industry charge that is transferred to the Federation shall have that part recognised, and deducted when their membership fees to the Federation are calculated. If the industry charge is no longer levied, this deduction shall automatically be abolished. The voting right of each member shall be calculated on the basis of his paid membership fee. Management and decision-making within the Federation is, as generally within associations, the responsibility of its board and the managing director’.
Documents submitted from the FII relating to the period to which the [applicant’s] requests pertain do not contain a clear breakdown of how the industry charge is used. It also appears from a comment in the Federation’s reports on the use of the charge for the years 2002 and 2003 that the Federation does ‘not keep separate accounts of whether the individual elements of the Federation’s operations are financed by monies derived from membership fees, capital income, or the industry charge’. A similar declaration on this point is found in the report to the Minister in respect of the year 2001, but a report for 2004 is not in the case file. The Federation’s reports to the Minister are also in other respects similar from year to year. In fact the case file seems to permit the inference that part of the charge is used for the general management of the Federation. It cannot be seen from the submissions in this case that the Minister of Industry has made any observations concerning the use of the charge, and in a letter to the Master Builders’ Association of 15 February 2002, following complaints relating to the use of the charge, he expresses the following opinion: ‘As can be clearly seen from the Industry Charge Act, the FII has the unrestricted power to decide how the charge is allocated, and the Ministry of Industry cannot interfere with this as long as it remains within the framework of the law.’ It can be seen from the submitted reports of the FII for the periods to which this case relates that the arrangement has been used for granting those members of the Federation who pay the industry charge a discount on their membership fees equal to the amount of the charge. As an example, the following comment in the Federation’s report to the Minister of Industry for 2003 may be quoted: ‘It may be pointed out that members who pay the industry charge have it deducted in full from their membership fees to the Federation. It would not be considered proper that companies within the Federation that are liable to the industry charge should pay more to the Federation’s activities than companies that are members, but not liable to the charge. In this way all the member companies of the Federation make equal payments to the Federation, irrespective of whether they are liable to the industry charge or not. On the other hand other companies, remaining outside, only pay the industry charge and thus make a contribution to the general protection of the interests of Icelandic industries.’
III
Provisions on freedom of association are found in Article 74 of the Constitution ... They contain more detailed rules on freedom of association than those directly expressed in Article 11 of the Convention ... Article 74 § 2 of the Constitution provides: ‘No one may be obliged to be a member of any association. Membership of an association may, however, be made obligatory by law if this is necessary in order to enable an association to discharge its functions in the public interest or on account of the rights of others.’
As noted above, the purpose of the industry charge is, according to the 1993 Act, the promotion of Icelandic industry, but it is also expressly provided that only the part of the charge corresponding to the cost of its collection is to be transferred to the State Treasury. The remainder is transferred to the FII, to be used as the Federation decides. It also seems that an unspecified proportion of the charge is used for the general activities of the Federation as its board may decide. It can furthermore not be seen from the provisions of the 1993 Act that the Minister of Industry is adequately empowered to ensure that the charge is used in the manner provided for in the Act; in this regard, the Minister simply receives the reports of the Federation. For these reasons the provisions of the 1993 Act cannot be regarded as ensuring that the charge will be used for the activities the Act requires.
The payment of membership fees to an association is generally a chief obligation of the members of an association that requires such payments. The applicant is a member of the Master Builders’ Association. Neither he nor his association is a member of the FII. The applicant does not agree with the Federation’s objectives in various fields, considering, as mentioned in the contested judgment, that the Federation acts contrary to his interests, and indeed also contrary to those of many others within industry who also pay the industry charge without being members of the Federation. Nevertheless, by virtue of the 1993 Act, the [applicant] is bound by a duty to pay the charge, which, as described, is transferred to a free association with the purpose of protecting the interests of those active in Icelandic industries and those of its members, as these interests are assessed at any particular time by a decision of the managing director and the board, without any significant involvement of public authorities.
When considering the above and the history of the 1993 Act, and in view of the use of the charge, without objection, for the general activities of the Federation, the arrangement provided for in the Act must be seen as involving, in fact, a duty on the part of the appellant to take a significant part in the Federation’s activities without his agreement. The above provisions of Article 74 § 2 of the Constitution, concerning people’s rights to remain outside associations, must be interpreted as prohibiting an arrangement such as provided for by the 1993 Act, unless that arrangement fulfils the requirements laid down in the second paragraph of the Article. The FII is not an association engaged in activities of the kind referred to therein. For this reason in itself, the appellant’s request for an exemption from his liability to pay the industry charge for the years 2001 to 2004 should be granted, and the respondent should be ordered to pay the appellant the costs of the case in the District Court as well as before the Supreme Court.”
20. Article 74 §§ 1 and 2 of the Icelandic Constitution provide:
“Associations may be formed without prior permission for any lawful purpose, including political associations and trade unions. An association may not be dissolved by administrative decision. The activities of an association found to be in furtherance of unlawful objectives may, however, be enjoined, in which case legal action shall be brought without undue delay for a judgment dissolving the association.
No one may be obliged to be a member of any association. Membership of an association may, however, be made obligatory by law if this is necessary in order to enable an association to discharge its functions in the public interest or on account of the rights of others.”
21. The relevant provisions of the 1993 Act (Law no. 134/1993) read:
“A charge of 0.08%, the industry charge, shall be levied on all Icelandic industries as defined in section 2. The charge shall be based on the turnover as provided for in section 11 of the Value-Added Tax Act, plus any revenue exempted from value-added tax pursuant to section 12 of that Act.
The assessment and collection of the industry charge shall be governed by the provisions of Chapters VII-XIV of the Income and Net-Worth Tax Act, as applicable.
The State Treasury shall receive 0.5% of the industry charge collected in accordance with the first paragraph to cover the cost of its collection.
The amounts paid under the industry charge are deductible from the revenue of the operating year on which the level of tax is based.”
“Any activity coming under the activity code numbers enumerated in the appendix to this Act shall be included in the term ‘industry’.
Enterprises entirely under public ownership, and enterprises formed under particular acts of law to be under public ownership to a significant extent, shall be exempt from the charge, unless a provision to the contrary is made in the Act in question.”
“Revenues derived from the industry charge shall be transferred to the Federation of Icelandic Industries. The revenues shall be used to promote industry and industrial development in Iceland. The Federation shall provide an annual report to the Ministry of Industry on the use of the revenues.”
“The Office of the Auditor-General may demand accounts from institutions, associations, funds and other parties that receive funding or guarantees from the State, and they shall be obliged to provide the Office of the Auditor-General with the materials requested. Furthermore, the Office of the Auditor-General shall be permitted access to, and shall have the right to examine, the original materials or reports that are created as well as invoices issued to the State or State bodies for work or services that are to be paid for, entirely or to a substantial extent, by the State Treasury in accordance with the law or contracts or labour agreements on the basis of tariffs that have been agreed with individuals or legal entities, in order to verify the contents of invoices and the payment obligation borne by the State Treasury. ...
In the event of a dispute regarding the right of the Office of the Auditor-General to carry out audit work in accordance with this section, the Office of the Auditor-General may seek a ruling by the District Court.”
22. The European Committee of Social Rights has addressed the issue of trade-union fees and contributions from the angle of Article 5 of the European Social Charter on several occasions, notably those referred to below:
“39. The Committee observes firstly that the fees deducted from the wages of workers pursuant to a collective agreement concluded between SBWU and the Swedish Construction Federation are, according to the collective agreement, for the service of wage monitoring. The Committee considers that the system of wage monitoring may, depending upon national traditions, be assumed either by public authorities, or, on the explicit or implicit authorisation of the legislator, by professional associations or trade unions. In the latter case this could legitimately require the payment of a fee.
40. Consequently, the Committee considers that the payment of a fee to the trade union for financing its activity of wage monitoring cannot be regarded in itself as unjustified. It also considers that it cannot be regarded as an interference with the freedom of a worker to join a trade union as the payment of the fee does not automatically lead to membership of the SBWU and in addition is not required from workers members [who are members] of trade unions other than SBWU.
41. However, the Committee considers that doubts exist as to the real use of the fees and that, in the present case, if they were to finance activities other than wage monitoring, these fees would, on the grounds indicated in paragraph 29, be deducted, at least for a part, in violation of Article 5.
42. In the present case, the Committee is not in a position to verify the use of the fees and in particular to verify to what extent the fees are proportional to the cost of the service carried out and to the benefits wage monitoring confers on the workers. These are decisive factors in determining a violation of Article 5 with reference to paragraphs 39 and 40 or 41. The Committee considers therefore that it is for the national courts to decide the matter in the light of the principles the Committee has laid down on this subject or, as the case may be, for the legislator to enable the courts to draw the consequences as regards the conformity with the [European Social] Charter and the legality of the provisions at issue.
43. The Committee reserves the right to supervise the situation in practice through the reporting procedure and, as the case may be, the collective complaints procedure.
...”
“... According to the report, it is common for trade unions to impose the payment of a fee and ‘the filling [out] of an application form or of an engagement’ on non-members within the enterprise in consideration for negotiating a collective agreement. Supplementary information received from the government at the Committee’s request indicates that the basis for this practice is the single national collective agreement 2001-2002, according to which the amount of the deduction should be no less than 0.3% of salary and no more than the amount of union dues. The Committee observes that by virtue of section 9 of [Law] no. 130/1996 on collective labour agreements, collective agreements apply to all workers in the enterprise, irrespective of their length of service or trade-union membership. In these circumstances, the imposition of a fee on workers who are not members of a trade union constitutes a union security practice that is contrary to the right to organise.
The Committee asks that the next report indicate clearly whether, in addition to paying a fee to the union, non-members are also required, as the report would seem to suggest, to apply for membership. ...”
“... The Committee previously concluded that the situation in Romania was not in conformity with Article 5 because of the obligation on non-unionised workers to pay a fee to the trade union that had negotiated the applicable collective agreement, even though such agreements applied by law to all workers independently of whether or not they were members of a trade union (the situation is described in Conclusions 2002, p. 126).
The Committee has re-examined the situation in the light of the explanations in the report and of the principles it has laid down in Complaint No. 12/2002 (Confederation of Swedish Enterprise v. Sweden, decision on the merits of 15 May 2003, §§ 26-31). It notes firstly that the contribution helps to finance an activity that benefits all employees: negotiating collective agreements. Secondly, under the single national collective agreement for 2001-2002, on which the practice is based, the contribution is not obligatory and is not earmarked for a trade union. Finally there is no statutory provision for automatic affiliation to a trade union. The Committee therefore considers that the payment of this sum cannot in itself be regarded as an infringement of employees’ right to join or not to join a trade union.”
“... In its previous conclusion, the Committee asked if automatic deductions from all workers’ wages, including those who were not unionised, were forbidden under the present legislation. The report states that according to rules on deducting trade-union dues, union dues are paid only by persons who are mandated to pay such dues, which means that they must be trade-union members.
Union dues can be paid in two ways. Union members may either pay their dues directly into the union account or ask their employers to deduct the dues from their wages, in which case the employer is required to comply. In 2002, parliament adopted legislation, with the support of the unions, requiring employers to deduct and transfer dues. Prior to that, deductions were only possible with the agreement of both employer and employee. The Committee considers that the procedure for deducting trade union contributions from wages at source may not be prohibited or made obligatory by national legislation. It must be made a criminal offence to use such a procedure for illegitimate purposes, for example to secure information on trade-union membership. ...”
23. Information on the right of workers and employers to establish and join organisations of their own choosing may be found in Chapter 5 of the Digest of Decisions and Principles of the Freedom of Association Committee of the Governing Body of the ILO.
Under the subheading “Trade union unity and pluralism”, it is pointed out, inter alia, that the fact that workers and employers generally find it in their interest to avoid a multiplication of the number of competing organisations would not be sufficient to justify direct or indirect intervention by the State (see Digest of Decisions and Principles, 2006, paragraph 319). A monopoly situation imposed by law would be at variance with the principle of free choice of workers’ and employers’ organisations (ibid., paragraph 320). A government should neither support nor obstruct a legal attempt by a trade union to displace an existing organisation. Workers should be free to choose the union which, in their opinion, will best promote their occupational interests without interference by the authorities (ibid., paragraph 322). The imposition of an obligation on all the workers in the category concerned to pay contributions to a single national trade union, the establishment of which is permitted by branch of industry and by region, would not be compatible with the principle that workers should have the right to join organisations “of their own choosing” (ibid., paragraph 325).
24. Under the subheading “Favouritism or discrimination in respect of particular organisations”, it is stated, inter alia (references in the Digest of Decisions and Principles added after each paragraph have been omitted here):
“339. Considering the limited functions which, in one case, were by law open to certain categories of trade unions, the Committee felt that the distinction made between trade unions under the national legislation could have the indirect consequence of restricting the freedom of workers to belong to the organisations of their choosing. The reasons which led the Committee to adopt this position are as follows. As a general rule, when a government can grant an advantage to one particular organisation or withdraw that advantage from one organisation in favour of another, there is a risk, even if such is not the government’s intention, that one trade union will be placed at an unfair advantage or disadvantage in relation to the others, which would thereby constitute an act of discrimination. More precisely, by placing one organisation at an advantage or at a disadvantage in relation to the others, a government may either directly or indirectly influence the choice of workers regarding the organisation to which they intend to belong, since they will undeniably want to belong to the union best able to serve them, even if their natural preference would have led them to join another organisation for occupational, religious, political or other reasons. The freedom of the parties to choose is a right expressly laid down in [ILO] Convention No. 87 [concerning freedom of association and the right to organise].
...
340. By according favourable or unfavourable treatment to a given organisation as compared with others, a government may be able to influence the choice of workers as to the organisation which they intend to join. In addition, a government which deliberately acts in this manner violates the principle laid down in [ILO] Convention No. 87 that the public authorities shall refrain from any interference which would restrict the rights provided for in the Convention or impede their lawful exercise; more indirectly, it would also violate the principle that the law of the land shall not be such as to impair, nor shall it be so applied as to impair, the guarantees provided for in the Convention. It would seem desirable that, if a government wishes to make certain facilities available to trade-union organisations, these organisations should enjoy equal treatment in this respect.
...
341. In a case in which there was at the very least a close working relationship between a trade union and the labour and other authorities, the Committee emphasised the importance it attaches to the resolution of 1952 concerning the independence of the trade-union movement and urged the government to refrain from showing favouritism towards, or discriminating against, any given trade union, and requested it to adopt a neutral attitude in its dealings with all workers’ and employers’ organisations, so that they are all placed on an equal footing.
...
342. On more than one occasion, the Committee has examined cases in which allegations were made that the public authorities had, by their attitude, favoured or discriminated against one or more trade union organisations:
(1) ...
(2) unequal distribution of subsidies among unions ...
(3) ...
Discrimination by such methods, or by others, may be an informal way of influencing the trade-union membership of workers. It is therefore sometimes difficult to prove. The fact, nevertheless, remains that any discrimination of this kind jeopardises the right of workers set out in [ILO] Convention No. 87, Article 2, to establish and join organisations of their own choosing.”
25. Chapter 8 of the Digest of Decisions and Principles contained the following principles regarding public financing and control of trade unions (references in the text added after each paragraph have been omitted here):
“466. The right of workers to establish organisations of their own choosing and the right of such organisations to draw up their own constitutions and internal rules and to organise their administration and activities presuppose financial independence. Such independence implies that workers’ organisations should not be financed in such a way as to allow the public authorities to enjoy discretionary powers over them.
...
467. With regard to systems of financing the trade-union movement which made trade unions financially dependent on a public body, the Committee considered that any form of State control is incompatible with the principles of freedom of association and should be abolished since it permitted interference by the authorities in the financial management of trade unions.
...
470. A system in which workers are bound to pay contributions to a public organisation which, in turn, finances trade union organisations, constitutes a serious threat to the independence of these organisations.
...
473. Questions concerning the financing of trade union and employers’ organisations, as regards both their own budgets and those of federations and confederations, should be governed by the by-laws of the organisations, federations and confederations themselves, and therefore, constitutional or legal provisions which require contributions are incompatible with the principles of freedom of association.”
VIOLATED_ARTICLES: 11


ITEMID: 001-61436
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF KRONE VERLAG GmbH & Co. KG (no. 2) v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 10;Pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
JUDGES: Peer Lorenzen
TEXT: 9. The applicant company is the publisher of a newspaper (Neue Kronenzeitung) with its registered office in Vienna.
10. In July 1996 the Neue Kronenzeitung published several articles on a case of parents, Ms and Mr K. who had abused their daughter. In the articles it was alleged that they had homo-bisexual inclinations. Subsequently Ms K. filed a compensation claim under the Media Act (Mediengesetz) with the Vienna Regional Criminal Court (Landesgericht für Strafsachen) against the applicant company.
11. On 30 July 1996 the court ordered the applicant company under Section 8a § 5 of the Media Act to publish a notice concerning the institution of the proceedings. On 4 September 1996 this notice was published in the Neue Kronenzeitung.
12. On 5 and 10 September 1996 Ms K. filed enforcement requests (Durchsetzungsanträge) under Section 20 of the Media Act against the applicant company. Referring to Section 13 § 3 of the Media Act, requiring a notice of the same “publishing value” (Veröffentlichungswert) as the original message, she argued that the notice of 4 September 1996 was smaller than the articles of July 1996 and was, thus, not published in due form.
13. On 17 December 1996 the Regional Court dismissed Ms K.'s request. The court found that the notice of 4 September 1996, though somewhat smaller, had the same “attention value” (Auffälligkeitswert) and, thus, the same “publishing value” as the articles.
14. With the Vienna Court of Appeal's (Oberlandesgericht) decision of 14 July 1997 the compensation proceedings were finally determined. The court ordered the applicant company to pay ATS 115,000 in compensation to Ms K. for breach of the presumption of innocence in its reporting about Ms K. and to publish the sentence. The applicant company complied with these orders.
15. On 30 July 1997 the Court of Appeal, upon Ms K.'s appeal, quashed the Regional Court's decision of 17 December 1996 and ordered the applicant company to pay a coercive indemnity (Geldbuße) of ATS 24,000 to Ms K., namely ATS 4,000 for each issue of the newspaper between 5 and 10 September 1996. The court considered that, in one of the disputed articles, Ms K. had been defamed even in a subtitle, whereas the notice had no subtitle. Therefore the “publishing value” was diminished.
16. Following this decision, Ms K. filed further enforcement requests for the period of 11 September 1996 until 4 August 1997.
17. On 23 September 1997 the applicant company requested that Section 20 § 4 of the Media Act be applied by analogy. This provision allowed for an exemption from the imposition of coercive indemnity for the duration of appeal proceedings in case a first-instance court had imposed a coercive indemnity for an inappropriate publication of the notice - which, however, had been published in a manner close to the due form - and the respondent had appealed against this decision. The applicant company argued that after the first-instance court's decision in its favour, finding that the notice had the same publishing value, it had not been required to publish another notice. Therefore the above rule of exemption from imposition of coercive indemnity during the appeal proceedings applied even more in its case. The applicant company further requested that Section 20 § 3 of the Media Act - which, in cases of special circumstances, allows the authority to stop or remit the imposition of coercive indemnity, once the notice has been published in due form - be applied for the period of 5 to 10 September 1996.
18. On 27 October 1997 the Regional Court ordered the applicant company to pay ATS 508,000 to Ms K., namely ATS 4,000 for each issue of the Neue Kronenzeitung between 20 September 1996 and 16 January 1997, the date of the introduction of Ms K.'s appeal against the decision of 17 December 1996. It dismissed the remainder of Ms K.'s request and the applicant company's request under Section 20 § 3 of the Media Act. The court found that Section 20 § 4 of the Media Act applied by analogy for the period of the appeal proceedings, therefore no coercive indemnity had to be paid from 17 January to 4 August 1997.
19. On 30 January 1998 the Vienna Court of Appeal, on both parties' appeal, quashed the Regional Court's decision in part. It decided that the applicant company had to pay a coercive indemnity of ATS 1,304,000 to Ms K., i.e. ATS 4,000 for each issue of the newspaper between 11 September 1996 and 4 August 1997. The court considered that the applicant company could not be exempted from paying the coercive indemnity for the period of the appeal proceedings, as the notice of 4 September 1996 had not come close to a notice in due form as required by Section 20 § 4 of the Media Act.
20. On 30 June 1998 the Procurator General's Office (Generalprokuratur) lodged a plea of nullity for the preservation of the law (Nichtigkeitsbeschwerde zur Wahrung des Gesetzes) with the Supreme Court. It argued that the coercive indemnity under Section 20 of the Media Act was a coercive measure (Beugemittel). According to the Office, it was unreasonable to impose a coercive indemnity for the period after the first instance court's decision of 17 December 1996, since after that decision the applicant company was to be considered as having acted in good faith when it did not publish another notice. The coercive indemnity should therefore only be imposed for the period before 17 December 1996.
21. On 15 September 1998 the Supreme Court dismissed the plea of nullity. It argued that the question of good faith could not be resolved under Section 20 § 4 of the Media Act. Rather, the applicant company would have to commence indulgence proceedings (Nachsichtsverfahren) under Section 20 § 3 of the Media Act. In such proceedings, its particular situation after the first instance decision of 17 December 1996 could be taken into account.
22. In compensation proceedings under the Media Act, the court shall order the media company concerned to publish a short notice about the institution of the case, if it may be assumed that the compensation claim is well founded (Section 8a § 5).
23. This notice has to have the same “publishing value” (Veröffentlichungswert) as the publication to which it refers (Section 13 § 3).
24. If the notice was not published in due form, the plaintiff may request the court to impose a coercive indemnity on the respondent for each issue in which the notice could have been duly published, with sums of up to ATS 10,000 per issue (Section 20 § 1).
25. Once the notice has been duly published, the coercive indemnity may be stopped or remitted on request by the respondent in cases of special circumstances (in berücksichtigungswürdigen Fällen) (Section 20 § 3).
26. The parties have a right to appeal to the Court of Appeal against decisions imposing or remitting a coercive indemnity. In the event a coercive indemnity has been imposed for inappropriate publication of the notice and the respondent has appealed against this decision, no further coercive indemnity shall be imposed for the duration of the appeal proceedings, if the notice - whose proper publication is litigious - was published in a manner coming close to the due form (Section 20 § 4).
VIOLATED_ARTICLES: 10


ITEMID: 001-104815
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: COŞAR v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: András Sajó;David Thór Björgvinsson;Françoise Tulkens;Giorgio Malinverni;Paulo Pinto De Albuquerque
TEXT: The applicant, Mr İsmail Coşar, is a Turkish national who was born in 1942 and lives in Istanbul. He is represented before the Court by Mr A. Yum and Mr Y. Güneş, lawyers practising in Istanbul. The Turkish Government (“the Government”) are represented by their Agent.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 5 October 1995 the Governorship of Istanbul expropriated a 204 sq. m plot of land belonging to the applicant (block no. 19, plot no. 7793), located in the Kocasinan Soğanlıbahçe region of Bahçelievler, Istanbul, to be used as a public school yard. It assessed the value of the land at 224,400,000 Turkish liras (TRL), that is, TRL 1,100,000 per sq. m.
On 14 February 1996 the administration sought to notify the applicant of the expropriation decision through a notary public. However, this notification did not reach the applicant as the service was made at the wrong address.
On 20 December 1999 the applicant’s lawyer obtained the expropriation decision from the Istanbul Sixteenth Notary Public in person and the expropriation was thus finalised.
On 19 January 2000, within the thirty-day prescription period stipulated in section 14 of the Expropriation Act (Law no. 2942), the applicant brought an action before the Bakırköy Civil Court for additional expropriation compensation. He requested TRL 3,855,600,000 in additional compensation, valuing the land at TRL 20,000,000 per sq. m, and reserved the right to increase this claim. He did not request payment of interest.
On 14 February 2000 the ownership of the plot of land was transferred to the administration in the title deed register.
On 16 February 2000 the administration paid the applicant the previously assessed amount of TRL 224,400,000 as compensation for expropriation.
On 26 December 2001 the committee of experts appointed by the Bakırköy Civil Court assessed the value of the land at TRL 70,000,000 per sq. m. This evaluation was made on the basis of the value of the land on 20 December 1999, the date on which the applicant’s lawyer was notified of the expropriation decision. The experts, however, noted that the compensation to be paid to the applicant at the end of the proceedings should be limited to his original claim in accordance with the relevant procedural rules.
On an unspecified date the applicant’s lawyer submitted a petition to the Bakırköy Civil Court, requesting that court, firstly, to apply interest on the amount of compensation to be awarded, and secondly to grant them additional time to bring an additional action (“ek dava”) to be able to claim an increased amount in compensation for the land.
At the hearing held on 28 March 2002 the applicant’s lawyer repeated his claim regarding the interest but did not bring up the request for an additional action. At the end of the hearing, the Bakırköy Civil Court declared that the request regarding the interest would be entertained. It did not, however, take any decision on the request regarding an additional action, which had been made out of time.
Given the considerable discrepancy between the experts’ evaluation and that of the administration, the court appointed another committee of experts to report on the value of the land. This new committee conducted an examination on 29 April 2002 and valued the land at TRL 149,500,000 per sq. m as on 20 December 1999. However, it was again noted that the additional compensation was to be limited to the applicant’s original claim.
On 24 May 2002 the Bakırköy Civil Court accepted the applicant’s claim in full and awarded him TRL 3,855,600,000 in additional compensation, plus interest at the statutory rate running from 20 January 2000. That court stated that although the value of the land at the relevant time had been assessed to be higher in the expert reports, it was bound by the applicant’s claim of TRL 3,855,600,000, and therefore could not award him a higher amount.
On an unspecified date, the applicant appealed against the judgment of the firstinstance court. He complained in particular that the value of his land had increased dramatically between 19 January 2000, the date when he had brought the case before the Bakırköy Civil Court, and 29 April 2002, the date when the second expert report had been obtained. In these circumstances, the insistence of the first-instance court on being bound by his initial claim had caused him significant financial loss. Having been obliged to bring his claim within the thirty-day prescription period, he could not possibly have foreseen such a radical increase in the value of his land.
On 3 June 2003 the Court of Cassation upheld the judgment of the Bakırköy Civil Court.
On 10 November 2003 the Court of Cassation rejected the applicant’s request for rectification of its previous decision. That decision was served on the applicant on 5 December 2003.
On 31 December 2003 the administration paid the applicant TRL 12,708,078,000 in additional compensation, including interest.
According to section 14 of the Expropriation Act (Law no. 2942 of 4 November 1983), the owner of an expropriated property may, within thirty days of notification of the expropriation decision, bring an action to challenge the amount of compensation assessed by the authorities.
According to Article 74 of the Code of Civil Procedure, the civil courts are bound by the claims of the parties and may not award a higher amount than requested.


ITEMID: 001-77018
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: PHULL v. FRANCE
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Suku Phull, is a United Kingdom national who was born in 1953 and lives in Britain.
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant is a practising Sikh and is thus required by his religion to wear a turban. He stated that in October 2003 he travelled to Strasbourg on a business trip; on the return journey on 10 October 2003 he was compelled by security staff at Entzheim Airport to remove his turban for inspection as he made his way through the security checkpoint prior to entering the departure lounge.