ITEMID: 001-57878
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: CHAMBER
DATE: 1994
DOCNAME: CASE OF VAN DE HURK v. THE NETHERLANDS
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1 (independent tribunal);No violation of Art. 6-1 (fair trial);Pecuniary damage - claim dismissed;Costs and expenses partial award - Convention proceedings
JUDGES: R. Pekkanen
TEXT: 6. The applicant is a Netherlands national born in 1945. He lives at Geffen in the province of Noord-Brabant, where he is a dairy farmer.
7. The applicant owned a cowshed in which there were originally 90 stands for milch cows and cows in calf as well as 63 stands for calves and heifers. In the years 1981, 1982 and 1983 the numbers of milch cows and cows in calf were 90, 96 and 102, respectively; the quantities of milk produced by the applicant in those years were 475,952, 445,571 and 488,026 kilograms.
8. After the Ordinance no. J 1731 on the Additional Levy (Beschikking Superheffing) of 18 April 1984, Staatscourant (Government Gazette) 79 -"the 1984 Ordinance"- was published on 19 April 1984, the applicant was allocated a reference quantity (that is a quantity of milk in excess of which an additional levy is payable - see paragraph 23 below) of 445,813 kilograms.
9. On 29 June 1984 the applicant filed a claim for a larger levy-free quantity of milk under Article 11 of the 1984 Ordinance (see paragraph 27 below) with the Head of the District Office of the Board for the Implementation of Agricultural Measures (districtsbureauhouder van de Stichting tot Uitvoering van Landbouwmaatregelen) of the province of Noord-Brabant. He stated that he had entered into obligations to invest in increasing the number of cow stands for milch cows and cows in calf as early as January 1984. These investments related to a new shed for heifers and bulls, the construction of which would release 40 stands in the existing shed for milch cows and cows in calf. The number of such stands would thus be raised from 90 to 130, an increase of more than 25%.
The total cost of building the new shed and adapting the existing one came to more than NLG 100,000.
10. The Head of the District Office of the Board for the Implementation of Agricultural Measures forwarded the applicant’s claim to the Director of Agriculture and Food Supply (directeur voor de landbouw en voedselvoorziening) of the province of Noord-Brabant (see paragraph 28 below). The latter rejected it on 1 November 1984, on the ground that the applicant had failed to show "that it had always been his intention to increase the number of stands for milch cows as stated in his claim".
11. On 27 November 1984 the applicant filed an objection to this decision with the Minister of Agriculture and Fisheries (see paragraph 30 below), arguing at length that he had in fact been planning such an increase for a long time.
12. The Minister of Agriculture and Fisheries dismissed the applicant’s objection on 11 November 1985, on the ground that "it appeared from the facts and circumstances stated in the objection and from information obtained officially from other sources (ambtelijk overig ingewonnen informatie)" that the number of stands for milch cows and cows in calf had been increased from 118 to 130 (i.e. by 12 or approximately 10%). The increase thus fell well short of the minimum of 25% required by the 1984 Ordinance (see paragraph 27 below).
13. The applicant appealed to the Industrial Appeals Tribunal (College van Beroep voor het Bedrijfsleven) ("the Tribunal" - see paragraph 31 below) on 3 December 1985. He maintained that the number of stands had been increased by 40 and argued that the Minister had erred in considering that the cowshed had originally contained 118 stands.
14. In addition, by a letter which reached the registry of the Tribunal on 30 December 1986, Mr van de Hurk applied to the President of the Tribunal (see paragraph 35 below) for an interim measure to the effect that, pending the Tribunal’s judgment, he should not be required to pay the additional levy for 1984-85 and the following milk years and that he should be paid back the additional levy he had already paid in respect of milk production which had not exceeded the reference quantity claimed on the basis of 28 new stands.
15. After a public hearing, the President of the Tribunal, in a letter dated 10 February 1987, asked the Minister to indicate whether he was prepared to reconsider his decision. By a letter dated 3 April 1987 the Minister replied that he saw no reason to do so and that the interim measure requested by the applicant should be refused. The Minister discussed the question of the increase in the number of stands and maintained his previous position. He submitted in the alternative that the applicant’s investments referable to that increase fell short of the required minimum of NLG 100,000. The Minister estimated that the total investment had been worth NLG 176,608.27 and the price per square metre of the new shed had been NLG 197.23; calculating on the basis of the surface taken up in the old shed by the new stands for milch cows and cows in calf, he concluded that the amount involved in the increase had been NLG 48,406.65 at the most.
16. The applicant set out his objections in a letter dated 18 May 1987. He argued firstly that the Minister was estopped from using this argument, which had never been invoked as a reason for rejecting the applicant’s original claim; in the alternative, the Minister’s calculations were wrong. He claimed, with reference to a list of the costs concerned drawn up by his accountant, that his total investment had in fact been NLG 215,183.22, and criticised the method of calculation used by the Minister. In his view, 65% of the total investment was referable to cow stands in the new shed for heifers, of which 90% replaced similar stands in the old shed that were now to be used for milch cows and cows in calf; the sum relating to the relevant increase was therefore NLG 125,882.
17. On 7 July 1987 the President of the Tribunal gave a decision refusing the interim measure requested, holding that it was not prima facie likely that the Tribunal itself would overturn the Minister’s decision. In his view, the Minister had not erred in rejecting the applicant’s claim. The President did not find it necessary to address the question of the increase in the number of stands for milch cows and cows in calf, since he accepted the Minister’s alternative argument concerning the applicant’s investment. He rejected the applicant’s submission that the Minister was estopped from relying on that ground, holding that section 51 of the 1954 Industrial Appeals Act (Wet administratieve rechtspraak bedrijfsorganisatie, Staatsblad (Official Bulletin) 1954, 416, as amended - "the 1954 Act") entitled him to supplement his arguments while the applicant had not only had sufficient possibility of replying to the Minister’s alternative submission but had in fact done so. Accepting the method of calculation used by the Minister and the total investment submitted by the applicant, the President arrived at a figure of NLG 55,440 referable to the increase in the number of stands in the old cowshed, and that figure was insufficient.
18. By a letter of 25 September 1987 to the registrar of the Tribunal the applicant stated that he wished to continue the proceedings. Commenting on the President’s decision, he discussed extensively his own method of calculation. Like the Minister, he took as his starting-point the investment involved in building the new shed for heifers. Starting from the figure which he gave before the President - NLG 215,183.22 (see paragraph 16 above) - he calculated a price per square metre of NLG 240. On that basis he arrived at a figure of NLG 125,882 for the investment referable to the increase in the number of cow stands for milch cows and cows in calf in the existing cowshed. In the alternative, if the Minister’s calculations were to be followed, he submitted that the Minister had based them on incorrect premises; if applied correctly, the Minister’s method resulted in a figure referable to the extension of stands for milch cows and cows in calf of NLG 91,200, which was sufficient since the applicant had carried out the physical work involved in building the new cowshed himself (see paragraph 27 below).
19. The Minister filed a written statement in reply on 21 November 1988. A public hearing was held on 19 April 1989, during which the applicant again contested the Minister’s method of calculation and argued that, should the Tribunal accept it nevertheless, the price per square metre calculated by the Minister was in any case too low; it was not NLG 240 - the Minister’s figure - but NLG 342.85.
20. The Tribunal delivered its judgment on the merits on 16 June 1989. Adopting the same approach as the President, it did not decide whether the increase in the number of cow stands had been sufficient; indeed, it explicitly declined to address this point. It likewise accepted the Minister’s method of calculation; applying it to the figures submitted by the applicant in response to the decision of its President (a price per square metre of NLG 240, the new stands covering a surface of 330 square metres), the Tribunal arrived at an investment of NLG 79,200 referable to the increase in the number of stands. The Tribunal refused to consider the price per square metre put forward by the applicant at the hearing, on grounds of belatedness, holding:
"The applicant’s statement first made at the hearing to the effect that the price per square metre is in reality NLG 342.85 will not be taken into account in reviewing the decision appealed against, in view of the rule laid down in Article 6 para. 2 of the Ordinance, amongst other things."
Accordingly, concluding that the applicant’s investments fell short of the minimum required, the Tribunal rejected the applicant’s appeal.
21. There had been surpluses of milk and milk products for some considerable time. By 1984, according to the preamble of Council Regulation (EEC) no. 856/84, "quantities of milk delivered [were] increasing at a rate such that disposal of surpluses [was] imposing financial burdens and market difficulties which [jeopardised] the very future of the common agricultural policy".
22. Amending an earlier regulation which had not proved sufficiently effective, Council Regulation (EEC) no. 856/84 (OJ (Official Journal) no. L 90 of 1 April 1984, p. 10) was adopted by the Council of the European Communities in response to these structural surpluses.
23. The Council of the European Communities decided that for an initial period of five years the quantity of milk every dairy farmer would be allowed to produce should be limited to a fixed amount (the "reference quantity"). To this end they introduced a system under which dairy farmers had to pay a penalty or "additional levy" on milk delivered in excess of their allotted quantities. It was left to the States themselves to share out their guaranteed quantities within their jurisdictions according to a formula prescribed by Council Regulation (EEC) no. 857/84 (OJ no. L 90 of 1 April 1984, p. 13).
24. Under Article 189 of the EEC Treaty, Council Regulations (EEC) no. 856/84 and (EEC) no. 857/84 were binding in their entirety and directly applicable in all member States of the European Communities. They entered into force on 1 April 1984.
25. Under section 13 paras. 1-2 of the Agriculture Act (Landbouwwet), the Minister of Agriculture, Nature Conservancy and Fisheries (minister voor landbouw, natuurbeheer en visserij) is empowered to issue an ordinance (beschikking) imposing a levy on the production, supply and processing of agricultural produce. Such an ordinance may be adopted, inter alia, to give effect to regulations, guidelines, decisions and recommendations of the EEC in so far as they relate to its common agricultural policy.
26. Council Regulations (EEC) no. 856/84 and (EEC) no. 857/84 were implemented by the 1984 Ordinance. This Ordinance was given retroactive effect to 1 April 1984, that being the date of entry into force of the EEC regulations.
27. Dairy farmers who had assumed obligations in connection with investments (investeringsverplichtingen) after 1 September 1981 but before 1 March 1984 could claim a larger reference quantity, calculated according to a formula given in the 1984 Ordinance, if certain conditions were fulfilled. Such an increased reference quantity was available, inter alia, to dairy farmers who could prove that they had entered into financial obligations to increase the number of their cow stands (for milch cows or cows in calf) by at least 25% to more than 60 (Article 11 of the 1984 Ordinance). The amount required to be invested was at least NLG 100,000, or 90% of that figure if the farmer could prove that he himself had contributed sufficiently to the physical work involved to make up the difference.
28. A person claiming an increased reference quantity on the basis of Article 11 of the 1984 Ordinance had until 1 August 1984 to file his claim with the Head of the District Office of the Board for the Implementation of Agricultural Measures, who would forward it to the provincial Director of Agriculture and Food Supply (Articles 6 para. 1, 7 para. 1 of the 1984 Ordinance). The Director gave a decision after consulting an advisory panel.
29. Such a claim had to be accompanied by a statement setting out the arguments and documentary evidence. According to Article 6 para. 2 of the 1984 Ordinance:
"A claim as referred to in the first paragraph shall be reasoned. It shall include a statement supported by evidence as to the various grounds of the claim referred to in Articles 11, 11b, 11c, 12 and 13.
The claim shall not be admissible if ... the rules laid down in this paragraph have not been complied with."
30. In the event of his claim being rejected, the claimant had thirty days within which to file an objection (bezwaarschrift) to the Director’s decision with the Minister (Article 7 paras. 2-3 of the 1984 Ordinance).
31. An appeal against the decision of the Minister lay within thirty days to the Tribunal (section 46 of the Agriculture Act).
32. The Tribunal is a judicial body set up under the 1954 Act. It was instituted initially to hear appeals against decisions and acts by various economic regulatory bodies, but gradually its jurisdiction has been extended to include certain decisions of central government and other independent government bodies under specialist legislation. According to the "Guidelines for making provision for appeals to the Industrial Appeals Tribunal" (Richtlijnen voor het openstellen van beroep op het College van Beroep voor het Bedrijfsleven) of 24 June 1986, Government Gazette 1986, 124, the Tribunal should in principle be the competent court with regard to "legislation of a socio-economic nature".
Section 5 of the 1954 Act gave the Tribunal competence to review such acts and decisions for compliance with legislation of a general nature and general principles of good governance (algemene beginselen van behoorlijk bestuur), to check whether there had been any abuse of authority and to determine whether in weighing up the interests at stake, the government body concerned had acted reasonably in deciding as it had.
33. The judges of the Tribunal are appointed for life by the Crown. They must have the same qualifications as Court of Appeal judges (section 9 of the 1954 Act). They take the same oath and receive the same salary as Court of Appeal judges and are subject to the same rules and procedure as regards supervision and dismissal (sections 11 and 12 of the 1954 Act).
Tribunal judges may not have any other official position, nor may they hold any position in private enterprise or in any association of employers or employees (section 10 of the 1954 Act).
34. The proceedings before the Tribunal are public. At the material time, they normally comprised written proceedings (an application filed by an appellant, a memorial in reply submitted by the government body concerned, and possibly - if the President consented - additional memorials) followed by an oral hearing (sections 29 et seq. of the 1954 Act).
Section 51 allowed both the government body and the applicant to "alter their claim or their defence and the grounds advanced in support, until the close of the hearing, unless the Tribunal [was] of the opinion that such a change place[d] the opponent at an unreasonable disadvantage".
35. Under section 65 of the 1954 Act the applicant could apply for interim measures to the President of the Tribunal. He could do so both before and after filing an appeal on the merits. The President would give a decision as soon as possible, having heard the government body concerned or at least offered it the opportunity to be heard.
36. The Tribunal, against whose judgment there was no further appeal, was empowered to overrule the decision appealed against and to provide for the consequences of such reversal; in particular, it could order the government body concerned to make, retract or alter a decision or to act or refrain from acting in a certain way. The judgment might include an order to pay a penalty in the event of non-compliance (section 58 of the 1954 Act). The Tribunal could also order the body to pay compensation for any damage suffered by the appellant as a result of the decision or act appealed against (section 60). To the extent that the judgment ordered payment of a sum of money, it could be executed in accordance with the rules pertaining to the execution of judgments of the courts in civil cases (section 62).
37. Sections 74 and 75 of the 1954 Act provided as follows:
"1. If in Our opinion the consequences of a judgment [i.e. of the Industrial Appeals Tribunal] are contrary to the general interest, We may, on the recommendation of those of Our ministers whom it concerns, decide that it shall not be followed or shall not be followed in its entirety.
2. Pending the taking of a decision under the preceding paragraph, We may, on the recommendation of those of Our ministers whom it concerns, suspend the judgment in whole or in part for a length of time to be determined by Us. Even after prolongation, suspension may not be for longer than one year.
3. A decision as referred to in the first paragraph may only be taken within two months of the judgment or, if the judgment is suspended within that period, within the length of time determined for the suspension. A decision as referred to in the second paragraph may only be taken within two months of the judgment.
4. Our decisions shall be published in the Official Bulletin.
5. The first two paragraphs shall not apply in so far as the decision awards compensation or partial compensation or orders the payment of costs.
6. ..."
"1. If We decide that the judgment shall not be followed or shall not be followed in its entirety, the Industrial Appeals Tribunal may, at the request of the person concerned, retry the case taking due notice of Our Decision or order the government body concerned to pay compensation for all or part of the damage suffered by the appellant as a consequence of the fact that the judgment is not followed or not followed in its entirety.
2-4. ..."
The expressions "We", "Our" and "Us" in the above sections referred to the fact that the decisions under section 74 took the form of a royal decree (Koninklijk besluit), that is a decree signed by the Monarch and the Minister responsible. Since such a decree can only be adopted on the initiative and the (political) responsibility of a Minister, it was effectively the Minister who had the power to issue a decision under section 74 paras. 1-2. Following customary Netherlands terminology, the present judgment will refer to the Monarch and the Minister together as "the Crown".
38. No use was ever made of the powers under sections 74 and 75 of the 1954 Act. The above-mentioned Guidelines (see paragraph 32 above) stated explicitly that new laws conferring jurisdiction on the Tribunal should declare the 1954 Act applicable except for sections 74 and 75. Before the Guidelines were drawn up, the Minister of Justice replied as follows to a question from the Council of State (Raad van State):
"In my opinion, it is in principle never necessary to declare sections 74 and 75 applicable by analogy. At the time, these two provisions were included in the Act as a matter of prudence, which may be explained by the circumstance that more than thirty years ago the legislature had little idea of the way in which administrative judicial procedure would develop. No use has ever been made of the Crown’s powers under section 74. One might even venture to suggest that the scheme of sections 74 and 75 has become a dead letter." (Kamerstukken (Parliamentary Documents) II 1984-1985, 18798, A-C, p. 10)
39. The 1954 Act remained in force until 1 January 1994. On that date a General Administrative Code (Algemene Wet Bestuursrecht) came into force, laying down new uniform rules of administrative-law procedure.
At the same time the 1954 Act was replaced by the Industrial Organisation (Administrative Jurisdiction) Act (Wet bestuursrechtspraak bedrijfsorganisatie). Under section 19 of that Act, the new uniform rules laid down in the General Administrative Code also govern the procedure of the Tribunal.
There is no provision in either the Code or the Act empowering any executive authority to interfere with the binding force of a judgment.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-82962
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF VAN VONDEL v. THE NETHERLANDS
IMPORTANCE: 3
CONCLUSION: Violation of Art. 8
JUDGES: David Thór Björgvinsson;Elisabeth Palm;Wilhelmina Thomassen
TEXT: 5. The applicant was born in 1954 and lives in Leeds.
6. Between 1 January 1989 and 1 August 1994, he worked as a police officer and, in this capacity, acted as a “runner” for the Kennemerland Regional Criminal Intelligence Service (Regionale Criminele Inlichtingendienst; “RCID”).
7. On 26 January 1994 the Minister of Justice (Minister van Justitie) and the Minister of the Interior (Minister van Binnenlandse Zaken) informed the Lower House of Parliament (Tweede Kamer der Staten-Generaal) of the disbandment in December 1993 of the North-Holland/Utrecht Interregional Criminal Investigation Team (Interregionaal Recherche Team; “IRT”) on account of deployment of controversial criminal investigation methods in the fight against organised crime (for further details, see Van Vondel v. the Netherlands (dec.), no. 38258/03, ECHR 2006). This triggered off a parliamentary inquiry (parlementaire enquête) into criminal investigation methods used in the Netherlands and the control exercised over such methods.
8. On 6 December 1994 the parliamentary commission of inquiry on criminal investigation methods (parlementaire enquêtecommissie opsporingsmethoden; “PEC”) was instituted. It was composed of nine Lower House parliamentarians.
9. The PEC conducted an extensive inquiry, which lasted for about one year. Between January and May 1995 documents were collected and examined and preliminary interviews with more than 300 persons were held. The PEC had subsequent informal, confidential “private conversations” (besloten gesprekken) with a total of 139 persons – of which verbatim records were drawn up – in order to broaden its understanding of the issues involved, to select the persons and experts to be heard in public, and to prepare these public hearings. On the basis of these documents, interviews and conversations, the PEC made a selection of persons whom it wished to hear. Those interviews and “private conversations”, which were all held on a voluntary basis, were of a confidential nature and the PEC gave an undertaking that, unless consent was given by the person concerned, it would not use any direct citations.
10. Between 6 September and 9 November 1995, the PEC held 93 public hearings during which 88 persons gave evidence, including the applicant who was heard twice. These public hearings were directly broadcast on national television. It did not hold any witness or expert hearings in camera.
11. The PEC presented its final report containing its findings and recommendations on 1 February 1996. It concluded that there was a crisis in the field of criminal investigation which comprised three main elements, namely the absence of adequate legal norms for investigating methods used in respect of organised crime, a criminal investigation system that was not functioning properly in that it involved too many separate organisations with little or no co-ordination of their activities, resulting in unclear decision-making as regards competences and responsibilities, and problems with power structures in that the prosecution department did not always have or exercise sufficient authority over the police.
12. The PEC report has had a great impact on the organisation of criminal investigation in the Netherlands and has formed the basis of a number of changes to the Netherlands Code of Criminal Procedure, including the Preliminary Judicial Investigations (Review) Act (Wet herziening gerechtelijk vooronderzoek) and the Special Investigative Powers Act (Wet bijzondere opsporingsbevoegdheden) which entered into force on 1 February 2000, amending the legal rules on investigative powers and coercive measures in criminal investigations.
13. In April 1995, with the permission of the Minister of Justice and under the responsibility and direction of the public prosecution service (Openbaar Ministerie), a special team of the National Police Internal Investigation Department (rijksrecherche), the so-called “Fort-team”, started a broad factfinding inquiry into the manner in which the Kennemerland Regional Criminal Intelligence Service (Regionale Criminele Inlichtingendienst; ”RCID”) operated between 1990 and 1995, in particular its use of special investigation methods which were not dissimilar to those having been used by the disbanded North-Holland/Utrecht IRT.
14. The mission of the Fort-team was: “To carry out, as thoroughly as possible, a fact-finding inquiry into the activities, functioning and working methods of the Kennemerland RCID from 1990 to date. In so doing, particular attention must be paid to the use of special investigation methods. In addition, the responsibilities of both the police and the public prosecution service for the RCID and RCID operations must be mapped out. The inquiry is to result in a report containing findings and recommendations.”
15. It was agreed with the Minister of Justice and the Minister of the Interior that the Chair and Vice-Chair of the PEC would be kept informed from the outset of this inquiry of the findings of the Fort-team. It was to be a fact-finding exercise, primarily aimed at drawing lessons from facts found.
16. The functioning of the Kennemerland RCID during the period under investigation by the Fort-team had already been the subject of a number of previous inquiries by the Kennemerland regional police force as well as by the National Police Internal Investigation Department. The results of the previous inquiries were incorporated into those of the Fort-team inquiry, which covered a multitude of aspects related to the practical functioning of the Kennemerland RCID, including its involvement in a number of specific activities, such as a “fruit-juice channel” – a controlled-delivery channel involving the transport of narcotics concealed in fruit-juice concentrates.
17. In the course of its inquiry, 250 persons gave evidence, 40 of whom more than once. The persons heard included higher officials of the police and public prosecution department, police officers involved in criminal investigations, police informers and other civilians. The applicant and his former superior Mr L. also gave evidence to the Fort-team. All persons heard by the Fort-team were given an undertaking that their statements would not be used, without their consent, in any criminal investigation.
18. According to the final report issued by the Fort-team on 29 March 1996, it had had contacts – from the start of its inquiry – with Mr R., a Belgian fruit-juice producer who during the relevant period had acted as an informer for the Kennemerland RCID and who had been “run” by the applicant. Mr R. had contacted the National Criminal Intelligence Service (Centrale Criminele Inlichtingendienst; “CRI”) in April 1995 and had declared that, since the end of 1991, he had been in contact with the applicant and subsequently with the latter's colleague Mr L. From the end of 1991 Mr R. had provided the applicant with information about the production of fruit-juice concentrates in Morocco and their transport to the Netherlands. After Mr R. had set up a fruit-juice factory in Belgium in 1992, he had met Mr L., whom he initially knew under a pseudonym. At the request of the applicant and Mr L., Mr R. had set up the fruit-juice factory Delta Rio in Ecuador. Although the applicant and Mr L. had invested millions of Netherlands guilders in both the Belgian and Delta Rio factories, they decided in September 1994 that the Delta Rio factory was to be closed down and sold. Mr R., who did not understand this decision, started to distrust the applicant and Mr L. and decided to inform the CRI about the matter. The CRI subsequently brought Mr R. into contact with the National Police Internal Investigation Department.
19. The final report of the Fort-team further states that, during its inquiry, the statements given by Mr R. had as far as possible been verified by the use of observations, audio devices and documents and that inquiries had been made as to whether and, if so, why the applicant and Mr L. had financially supported the factory in Belgium and had the Delta Rio factory in Ecuador set up.
20. Although reports by the National Police Internal Investigation Department are generally not public, the report of the Fort-team was rendered public given the attention this inquiry, against the background of the PEC inquiry, had attracted. Its main conclusions comprised, inter alia, the following elements:
- the Kennemerland RCID was to be characterised as a disorganised service, in which no direction was given and where no substantive control whatsoever was exercised;
- in the Kennemerland RCID, basic rules on the “running” of informers and infiltrators had been breached frequently and on a large scale;
- the police force command had seriously fallen short in the exercise of its responsibility over the RCID in that the commander, his deputy and the head of the criminal investigation division were not or hardly aware of the particulars of RCID activities; - the scope of the CID work had for a long time been seriously underestimated by the Haarlem public prosecution department;
- between 1991 and 1995 the RCID chief L. and his (ex)collaborator [the applicant] had, with a high degree of probability, spent over five million Netherlands guilders from an undocumented source, thus giving rise to the impression that the money had criminal origins;
- the spending of this money had not been subjected to any form of control;
- the RCID chief L. had consequently disregarded his duty to inform and give explanations to his superiors and the public prosecution department on essential points, and he had intentionally misinformed his superiors as well as the National Criminal Investigation Department;
- since at least 1991 the Kennemerland RCID had used the method of controlled drug deliveries;
- the relevant police commanders and public prosecutors had only controlled the application of this method by the Kennemerland RCID to a limited extent;
- Mr L. and the applicant had set up a CID operation in Ecuador wholly independently (without informing their superiors or the public prosecution department) and in this so-called “fruit-juice channel” all rules applicable to CID activities had been breached;
- the most plausible explanation for the “fruit-juice channel” was the wish to set up an infrastructure for controlled narcotics shipments and it had remained unclear what purpose this channel still served after the IRT had been disbanded and for what purposes major investments were still being made;
- the statements given by Mr L. and the applicant before the PEC about the funds invested in the “fruit-juice channel” were, on important points, in contradiction with the findings made in the inquiry of the National Criminal Investigation Department;
- the conducting of CID operations abroad (Morocco, Ecuador, the United Kingdom, Belgium), without informing the foreign authorities, had violated the sovereignty of these countries, making it subservient to domestic investigation interests;
- it had not appeared that killings in the criminal world could be attributed to the Kennemerland RCID's practice of “running” informers or to the targeting of such informers;
- after the IRT's disbandment, on several occasions serious threats against Mr L. had formed the topic of conversation, but it had appeared after investigation that there was nothing concrete behind these threats; yet it was noteworthy that these threats coincided with moments when Mr L. was called to account explicitly for far-reaching CID activities;
- moreover, after having left the police force, the applicant had maintained contacts with at least four informers and had – in cooperation with former colleagues – transported drugs through police-controlled channels and accepted money of criminal origin; and
- no explanation had been found for a number of actions by Mr L. and the applicant and they themselves had never given a reasonable explanation; the question whether they had been active, within the limits of the rule of law, in fighting crime or, whether, intentionally or unintentionally, they had participated in that same criminal activity could not be answered.
21. On 9 October 1995, immediately after Mr L.'s appearance, the applicant gave evidence under oath at a public hearing before the PEC.
22. On 30 October 1995, the PEC had a “private conversation” with Mr R., who was referred to in the verbatim record of this conversation as “Juice-man” (“Sapman”). On 2 November 1995, directly after Mr L.'s second appearance, the PEC also took evidence from the applicant in public for a second time.
23. Although, in the course of its inquiry, the Fort-team had requested the applicant to give a statement on a number of occasions, he did so only once, namely shortly before his second PEC hearing, and briefly in the context of the inquiry into the “fruit-juice channel”, and refused further cooperation.
24. On 31 January 1996 the PEC transmitted to the chief public prosecutor of The Hague a formal record of perjury (proces-verbaal van meineed) in relation to the applicant and his former superior Mr L. concerning various parts of their statements before the PEC, in particular those parts concerning the question of payments to Mr R.
25. On an unspecified date, the applicant was ordered to appear before the Regional Court (arrondissementsrechtbank) of The Hague to stand trial on charges of repeated perjury before the PEC and of repeatedly, that is to say, on different occasions between 25 April 1996 and 11 June 1996, having sought to intimidate Mr R. when the applicant knew or had serious reason to assume that a statement from him would be sought in the context of the PEC inquiry.
26. In its judgment of 8 April 1998, following hearings on 24 and 25 March 1998, the Regional Court convicted the applicant as charged and sentenced him to six months' imprisonment. Both the applicant and the prosecution lodged an appeal with the Court of Appeal (gerechtshof) of The Hague.
27. In a judgment of 5 March 2002, following nine hearings held between 14 November 2000 and 19 February 2002 and in the course of which Mr R. had given evidence to the Court of Appeal on 17 January 2001, the Court of Appeal quashed the judgment of 8 April 1998, convicted the applicant of repeated perjury before the PEC (in respect of three parts of the statements he had made at hearings before the PEC) and of repeatedly having sought to intimidate the (potential) witness Mr R. It acquitted the applicant of the remaining charges and sentenced him to three months' imprisonment, suspended pending a two-year probationary period.
28. The Court of Appeal rejected the applicant's argument that the evidence in his case had been unlawfully obtained. As regards the inquiry by the Fort-team, the Court of Appeal noted that the tasks of the National Police Internal Investigation Department included carrying out inquiries into the manner in which police officers used their statutory powers, and that, in accordance with section 19 § 3 of the 1993 Police Act (Politiewet) in conjunction with section 2 of the Order on the functions of special-duty police officers (Taakbeschikking bijzondere ambtenaren van politie) of 25 March 1994 (Official Gazette (Staatscourant) 1994, no. 64), the prosecutorgeneral (Procureur-Generaal) can instruct the National Police Internal Investigation Department to carry out an inquiry, which may concern acts of an individual police officer or the functioning of a particular police force unit. After an extensive analysis of the mission of the Fort-team and the manner in which its inquiry had evolved, the Court of Appeal found no reasons for holding that this inquiry should be regarded as a covert criminal investigation or that, in the course of this inquiry, the applicant should have been regarded as a criminal suspect in connection with the “fruit-juice channel”.
29. The Court of Appeal also rejected the applicant's argument that the recording by Mr R. of his (telephone) conversations with the applicant with technical equipment made available by the National Police Internal Investigation Department had infringed his right to privacy under Article 8 of the Convention. It found it established that, in the course of nine hearing sessions between 2 June 1995 and 7 March 1996, Mr R. had made statements to the Fort-team about the “fruit-juice channel”, that four facetoface conversations (between April and August 1995) and four telephone conversations (between July and August 1995) between the applicant and Mr R. had been recorded by Mr R., that he had done so on a voluntary basis and with the aid of devices provided by the Fort-team at Mr R.'s own request as he was initially disbelieved and as he also wished this for personal safety considerations, that one of the four recorded telephone conversations only consisted of a recording of what Mr R. had said, and that only in respect of one particular conversation had Mr R. received specific instructions as to what information should be obtained from the applicant, namely an admission of payments by him to Mr R.
30. The Court of Appeal held that, according to domestic case-law, the mere tape-recording of a (telephone) conversation without the permission (or knowledge) of the conversation partner did not, in itself, entail a violation of that conversation partner's right to respect for privacy; for that to be the case, additional circumstances were required. In the instant case, the additional circumstances were that a number of conversations had been recorded, including the applicant's contributions to those conversations. Furthermore, the (telephone) conversations had been conducted by the applicant as the former “runner” of a (former) police informer about matters having occurred during the period in which the applicant “ran” Mr R. as informer and the winding-up of that relationship. As these conversations – in any event on the part of the applicant – were of an exclusively professional nature and content, the Court of Appeal held that, in view of domestic case-law on this point, this allowed no other conclusion than that the applicant's private life did not come into play in respect of the recorded (telephone) conversations at issue. It further held that Mr R.'s recourse to a recording device – and Mr R. had been entirely free to decide whether or not to activate it as well as to make the recordings available to the Fort-team – had mainly been prompted by Mr R.'s need to substantiate his account of the “fruit-juice channel” in order to be believed. The Court of Appeal therefore considered that it could not be said that there had been interference on the part of the authorities in respect of the recording. It only accepted the existence of such interference in breach of Article 8 § 1 in respect of the one recorded conversation for which Mr R. had received explicit instructions, to the extent that this conversation related to matters falling within the applicant's sphere of privacy. It did not use that particular statement in evidence.
31. In the opinion of the Court of Appeal, these findings were not altered by the fact that the Fort-team, for its part, had an interest in recording the conversations for the purposes of verifying information relevant to its factfinding inquiry, provided by Mr R., about the involvement in the “fruitjuice channel” of staff attached to the Kennemerland RCID, the unit forming the object of the Fort-team inquiry. The Court of Appeal found it relatively obvious that this verification, in view of the accounts of the inquiry in subsequent reports, had taken place in the form of tape-recordings and the preparation of transcripts and, in this connection, recalled its finding that the inquiry was not to be regarded as a (covert) criminal investigation.
32. The applicant lodged an appeal in cassation with the Supreme Court (Hoge Raad) in which he raised a total of 15 grievances, including a complaint – in which he relied inter alia on Article 8 of the Convention – that the Court of Appeal had unjustly rejected his argument that his right to privacy had been violated on account of the recording of his (telephone) conversations with Mr R.
33. The applicant's appeal in cassation was rejected by the Supreme Court on 8 July 2003. It dismissed the alleged violation of the applicant's right to privacy, holding:
“The complaint does not provide grounds for overturning the ruling of the Court of Appeal (kan niet tot cassatie leiden). Having regard to section 81 of the Judiciary (Organisation) Act (Wet op de rechterlijke organisatie), no further reasoning is called for, since the complaint does not give rise to a need for a determination of legal issues in the interest of legal unity or legal development.”
34. Article 10 of the Constitution (Grondwet) of the Kingdom of the Netherlands provides as follows:
“1. Everyone shall have the right to respect for his privacy, without prejudice to restrictions laid down by or pursuant to Act of Parliament.
2. Rules to protect privacy shall be laid down by Act of Parliament in connection with the recording and dissemination of personal data.
3. Rules concerning the rights of persons to be informed of data recorded concerning them and of the use that is made thereof, and to have such data corrected shall be laid down by Act of Parliament.”
Article 13 of the Constitution reads:
“1. The privacy of correspondence shall not be violated except in the cases laid down by Act of Parliament, by order of the courts.
2. The privacy of the telephone and telegraph shall not be violated except, in the cases laid down by Act of Parliament, by or with the authorisation of those designated for the purpose by Act of Parliament.”
According to the relevant provisions of the Netherlands Criminal Code (Wetboek van Strafrecht) as in force at the material time (section 139a-e), it is not a criminal offence when a conversation partner taps or records a (telephone) conversation with a technical device or when a conversation partner passes a recording of such a conversation on to another person. It is further not a criminal offence when a person makes available to another person a recording device, unless the former is aware or in all reasonableness should be aware that the device concerned contains unlawfully made recordings or unlawfully obtained and stored data.
35. Pursuant to section 3 § 2 of the 1850 Parliamentary Inquiries Act (Wet op de Parlementaire Enquête – “the Act”), all persons residing in the Netherlands are obliged to comply with a summons to appear before a parliamentary commission of inquiry in order to be heard as a witness or expert. In case a person fails to comply with a summons to appear, the commission may issue an order for the person concerned to be brought before it (bevel tot medebrenging) within the meaning of section 13 of the Act. The commission may require such witnesses to take the oath or make a solemn affirmation that they will state the whole truth and nothing but the truth (section 8 §§ 1 and 2 of the Act).
36. Unlike the situation in criminal proceedings, persons heard by a parliamentary commission of inquiry do not have the right to remain silent. The only persons who enjoy the privilege of non-disclosure before a parliamentary commission of inquiry are those who – by virtue of their office, their profession or their position – are bound to secrecy, but only in relation to matters the knowledge of which has been entrusted to them in that capacity (section 19 of the Act) or in case disclosure of secret information would entail disproportionate damage to the exercise of the profession of the person concerned or to the interest of his or her company or the company for which he or she works or has worked (section 18 of the Act).
37. Section 24 of the Act provides that, with the exception of the situation referred to in section 25, statements given to a parliamentary commission of inquiry can never be used in evidence in judicial proceedings against the person having given such statements or against any third party. This reflects the principle that the purpose of a parliamentary inquiry is to find out the truth about facts and events having taken place in the past and not to determine personal liabilities under civil or criminal law.
38. Section 25 of the Act provides, inter alia, that perjury (meineed) on the part of a witness heard by a parliamentary commission of inquiry attracts the penalties provided for in the Criminal Code for giving false testimony in civil proceedings. It further provides that the written record of the hearing concerned constitutes legal evidence.
Section 43 of the 1993 Police Act (Politiewet) provides:
“1. For tasks determined by the Minister of Justice, after consultation with the Minister of Internal Affairs, the Procurator General shall have at his disposal specialduty police officers (bijzondere ambtenaren van politie).
2. The special-duty police officers shall ... be appointed, promoted, suspended and dismissed by the Minister of Justice.”
39. The main task of the National Police Internal Investigation Department is to investigate (purported) punishable behaviour of civil servants which affects the integrity of the administration of justice and/or that of the public administration. It exercises this task by conducting either a fact-finding inquiry or a criminal investigation, depending on the mission given. As a fact-finding inquiry is solely aimed at obtaining factual clarification, the National Police Internal Investigation Department cannot avail itself of any investigative powers (opsporingsbevoegdheden) or coercive measures (dwangmiddelen) in conducting such an inquiry. On the other hand, when conducting a criminal investigation, it can use such powers and measures and a criminal investigation may follow a fact-finding inquiry.
40. The rules, as in force at the material time, concerning the interception and recording of telecommunications by the investigation authorities in criminal proceedings are set out in the Court's judgment in the case of M.M. v. the Netherlands, (no. 39339/98, §§ 22-28, 8 April 2003) and in its decision on admissibility in the case of Aalmoes and Others v. the Netherlands (no. 16269/02, 25 November 2004).
VIOLATED_ARTICLES: 8


ITEMID: 001-116104
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: ZGONNIK v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Aleš Pejchal;Angelika Nußberger;Ann Power-Forde;Helena Jäderblom;Mark Villiger;Paul Lemmens
TEXT: The applicant, Mr Valeriy Vladyslavovych Zgonnik, is a Ukrainian national, who was born in 1965 and lives in Kostyantynivka, Donetsk region. He was represented before the Court by Mr M. Anikin, a lawyer practising in Kerch.
On 9 July 2006 the applicant was detained on suspicion of murder.
On 11 July 2006 he was taken to the Kostyantynivskyy Town Court, which held that it was necessary to make further enquiries about him and decided to extend the term of his detention to ten days.
On 21 July 2006 the Kostyantynivskyy Court remanded the applicant in custody pending trial.
The applicant’s pre-trial detention was extended by judicial decisions on three occasions, until 9 November 2006.
On 7 November 2006 the investigator applied to the Donetsk Regional Court of Appeal (“the Donetsk Regional Court”) for another extension of the applicant’s detention, this time until 9 December 2006. According to the investigator, the applicant and his lawyer had received access to the case file only on 27 October 2006 and needed more time for studying it.
On 9 November 2006 the Donetsk Regional Court refused to accept the investigator’s application as submitted with a delay. It held that the delayed provision of access for the applicant to the case file was not a valid reason for extending his detention and that he was to be released immediately after the expiry of the authorised detention term.
The investigator referred the case for trial instead. However, he immediately requested the court to return it back for additional investigation on the grounds that the applicant and his lawyer had not had sufficient time to study the case file. According to the applicant, by doing so the investigator circumvented the legally established time-limits for his pre-trial detention.
On 4 December 2006 the Donetsk Regional Court remitted the case for additional investigation in allowing the investigator’s application. It noted that the term of the applicant’s pre-trial detention had expired and that it had not been extended. At the same time, it held that, given the seriousness of the crime the applicant was charged with, he was to remain in detention.
The applicant unsuccessfully challenged the above ruling to the Supreme Court, which held on 25 January 2007 that the issue of the preventive measure in his case was to be decided by the investigating authorities.
On 23 April 2007 the investigator once again referred the case to the court for trial.
However, on 17 May 2007 the Donetsk Regional Court remitted it for additional investigation once again. It held that the applicant had not been provided with the possibility to study the case file. Furthermore, the term of his pre-trial detention had been breached. Nonetheless, the court decided to keep the applicant in detention with reference to the seriousness of the criminal offence he was charged with. It therefore rejected his request for release.
On 19 July 2007 the Supreme Court rejected the applicant’s cassation appeal against the above ruling.
At some point thereafter the case was reassigned to another investigator.
On 25 December 2007 the investigator terminated the criminal proceedings against the applicant for the absence of sufficient evidence that he had committed the crime in question. The applicant was released immediately.
In November 2010 the applicant lodged a civil claim with the Voroshylivskyy District Court of Donetsk (“the Voroshylivskyy Court”) against the Donetsk Regional Prosecutor’s Office and the State Treasury seeking compensation for damages in respect of his allegedly unlawful criminal prosecution and detention. Namely, he claimed 39,057 Ukrainian hryvnias (UAH) in respect of pecuniary damage and UAH 10,000,000 in respect of non-pecuniary damage.
The applicant submitted, in particular, that because of the inherent stress he had become ill with psoriasis during his detention. He referred in this connection to a medical certificate of 20 April 2010, according to which he had been assigned to the second category (medium) of disability on account of this disease, which was incurable and which had apparently been triggered by his stress related to his criminal prosecution and detention.
On 15 November 2011 the Voroshylivskyy Court allowed the applicant’s claim in part and awarded him UAH 87,741.94 in compensation for non-pecuniary damage, UAH 7,280 in respect of lost income and UAH 19,262.25 in respect of medical treatment costs.
The court held that the applicant had been a victim of unlawful criminal prosecution and detention from 9 July 2006 to 25 December 2007 (for seventeen months and seventeen days). It relied on the Law “On the Procedure for the Compensation of Damage caused to Citizens by the Unlawful Actions of Bodies in charge of Operational Enquiries, Pre-trial Investigation Authorities, Prosecutors or Courts”, according to which the termination of criminal proceedings for the lack of corpus delicti, like in the applicant’s case, provided grounds for compensation of damages.
The Voroshylivskyy Court also referred to the medical certificate concerning the applicant’s disease of psoriasis and its link with his criminal prosecution and detention.
On 16 December 2011 the Donetsk Regional Court of Appeal upheld the above judgment in the part regarding the compensation for the non-pecuniary damage. As to the compensation for the lost income and the medical treatment costs, it held that, according to the legally envisaged procedure, the applicant had to address first the respective investigation authorities which had been dealing with his case.
On 2 February 2012 the Supreme Court upheld that ruling.
The relevant provisions of the Law “On the Procedure for the Compensation of Damage caused to Citizens by the Unlawful Actions of Bodies in charge of Operational Enquiries, Pre-trial Investigation Authorities, Prosecutors or Courts” can be found in judgment on the case of Afanasyev v. Ukraine, no. 38722/02, § 52, 5 April 2005.


ITEMID: 001-59165
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF HOLZINGER v. AUSTRIA (No. 1)
IMPORTANCE: 1
CONCLUSION: Preliminary objection allowed (non-exhaustion of domestic remedies)
TEXT: 6. On 16 May 1988 the applicant introduced proceedings in the Salzburg District Court (Bezirksgericht) against a former lawyer for the sum of 30,000 Austrian schillings (ATS). The District Court rejected the claim on 20 May 1988 because it considered that it had no jurisdiction. On 1 June 1988 it quashed its previous decision and, upon the applicant's request (Überweisungsantrag), remitted the case to the Regional Court (Landesgericht). On 8 August 1988 the Regional Court instructed the applicant to submit his claim through a lawyer, which he did on 13 September 1988.
7. On 23 November 1988 the Regional Court found that the judge who had been in charge of the case was not impartial, and quashed all procedural steps taken after 7 July 1988.
8. A defence pleading was lodged on 21 December 1988 and, on 22 February 1989, at the applicant's request, the Regional Court adjourned the proceedings pending the outcome of a different action, the proceedings only to be resumed on application by the parties. On 30 June 1989 the applicant's lawyer requested that the proceedings be resumed and increased the claim to ATS 449,417.23. The Regional Court returned the request on 4 August 1989 with the instruction to formulate it properly.
9. A hearing which had been set down for 20 December 1989 was adjourned when the judge in charge of the case changed.
10. On 31 March 1990 the defendant gave up his professional activities, and the proceedings had to be adjourned for a lawyer to be appointed. On 6 June 1990 the applicant requested the court to order the defendant to appoint a lawyer, and on 13 June it did so. The defendant failed to appoint a lawyer within the time-limit. On 9 November 1990 the court announced that, in view of the defendant's failure to appoint a lawyer, the proceedings were resumed. A hearing was fixed for 11 December 1990.
11. At the hearing on 11 December 1990 the proceedings had to be commenced again because of a change of judge. The defendant was neither present nor represented, and the applicant's representative asked for judgment to be entered by default. The court adjourned the proceedings in order to allow consideration to be given to additional papers submitted by the applicant's representatives. On 23 January 1991 the Regional Court permitted the defendant, who had produced a medical certificate in respect of 11 December 1990, to remain in the proceedings.
12. On 16 October 1991 the applicant wrote to the court requesting that the proceedings be resumed. On 18 October the parties were summoned to a hearing set for 26 November 1991. That hearing was postponed as the applicant had informed the court that he would be absent from 18 November 1991 to 28 January 1992. On 12 March 1992 the applicant again asked for the proceedings to be resumed. On 23 March the parties were summoned to a hearing set for 7 May 1992. At the end of that hearing the proceedings were adjourned, and on 18 May 1992 the applicant asked for them to be resumed soon as he was to be away from 9 September to 20 November 1992. On 25 May 1992 the court set the next hearing for 7 July 1992, when the applicant replied to questions, his representative submitted a series of documents and the proceedings were again adjourned.
13. The next hearing took place on 26 November 1992, at the end of which the judge declared the trial closed. The judgment, 18 February 1993, was received by the applicant's representative on 4 March 1993. The court found that the applicant's action was statute-barred. The applicant's appeal of 18 March 1993 was returned by the court on 1 April 1993 as it had not been duly signed by a lawyer. The appeal was re-submitted on 28 April. The defendant's reply was dated 26 May 1993, and by a judgment dated 29 September 1993 the Linz Court of Appeal dismissed the applicant's appeal, confirming the Regional Court's judgment. The judgment stated that no further appeal (Revision) was possible. The applicant's representative received the decision on 4 November 1993.
14. An application by the applicant for legal aid for an extraordinary appeal dated 9 November 1993 was rejected on 11 November 1993 as the proceedings had ended.
15. On 6 May 1994 the Linz Court of Appeal dismissed a challenge by the applicant to a decision of the Regional Court of 11 November 1993 by which the defendant had been permitted to enforce a costs order against him.
16. Section 91 of the Courts Act (Gerichtsorganisationsgesetz), which has been in force since 1 January 1990, provides as follows.
“(1) If a court is dilatory in taking any procedural step, such as announcing or holding a hearing, obtaining an expert's report, or preparing a decision, any party may submit a request to this court for the superior court to impose an appropriate time-limit for the taking of the particular procedural step; unless sub-section (2) of this section applies, the court is required to submit the request to the superior court, together with its comments, forthwith.
(2) If the court takes all the procedural steps specified in the request within four weeks of receipt, and so informs the party concerned, the request is deemed withdrawn unless the party declares within two weeks after service of the notification that it wishes to maintain its request.
(3) The request referred to in sub-section (1) shall be determined with special expedition by a Chamber of the superior court consisting of three professional judges, one of whom shall preside; if the court has not been dilatory, the request shall be dismissed. This decision is not subject to appeal.”


ITEMID: 001-88895
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF MEHMET EREN v. TURKEY
IMPORTANCE: 3
CONCLUSION: Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 4. The applicant was born in 1968 and lives in Diyarbakır.
5. On 17 November 1998 at 3.30 p.m. the applicant, a journalist working for a biweekly newspaper, was taken into custody by police officers from the Anti-Terrorist Branch of the Diyarbakır Police Headquarters along with 108 other persons. At the time of the arrest, the applicant and the other arrestees were in the Diyarbakır branch of the People’s Democracy Party (HADEP), where demonstrations and hunger strikes were allegedly being organised, in order to protest about the arrest of Abdullah Öcalan, the leader of the PKK (the Workers’ Party of Kurdistan), an illegal organisation.
6. At 7.30 p.m. on the same day the applicant was taken to the Diyarbakır State Hospital. The doctor who examined him noted that there was no sign of recent physical violence on the applicant’s person.
7. On 20 November 1998 the applicant made statements to the police. According to the report signed by two police officers and the applicant, the applicant stated that he had been in the Diyarbakır branch of HADEP in order to participate in the demonstration.
8. The applicant alleges that he was subjected to various forms of illtreatment while in police custody. In particular, he was kept in a dark cell with insufficient ventilation, deprived of food and water and was prevented from going to the toilet. He was forced to stand, handcuffed, in the same position for long hours. During the questioning, he was stripped naked, insulted and threatened with death and rape. The applicant was beaten on various parts of his body. In particular, he received repeated blows to his abdomen. His testicles were squeezed and he was subjected to sexual abuse. Finally, he was forced to watch a female detainee being sexually abused.
9. On 23 November 1998 the applicant, along with nine other persons, was taken to a clinic in Diyarbakır and examined there by a medical expert, who drafted one document in respect of all ten people, and noted that none of them had sustained any injuries.
10. On 25 November 1998 the applicant, along with 110 other persons, was taken to the same clinic and examined there by another doctor, Mr A.O. On a document of the police headquarters in which the names of all 111 persons were put, Mr A.O. noted the same sentence below every name:
“No sign of physical violence has been observed”.
The applicant claimed that there had been police officers present in the examination room and that although he had described the type of ill-treatment to which he had been subjected in police custody, the doctor did not note any of his complaints.
11. On 25 November 1998 the applicant was brought before the public prosecutor at the Diyarbakır State Security Court. He maintained that he had been in the HADEP building as a journalist and that he had not participated in the demonstration or the hunger strike. He stated that he had been made to sign his police statements without reading them.
12. At 9 p.m. on the same day, the applicant was released upon the decision of the public prosecutor.
13. On 26 November 1998 the applicant was examined by a doctor from the Diyarbakır branch of the Human Rights Foundation of Turkey, Mr R.A., who recorded the following:
“There is a bruise measuring 10 x 0.5 cm on the right side of the hypogastrium. He has sensitivity and pain upon palpation behind his knees, pain in the ankles, sensitivity and pain in the toe muscles in both feet. He also has sensitivity in his testicles and epididymis, swelling in the groin (may be the beginning of a hernia), sensitivity and pain in the epigastrium. An eruption on the occipital region has been observed.”
14. On an unspecified date the Diyarbakır branch of the Human Rights Foundation of Turkey referred the applicant to the Izmir branch of the Turkish Medical Association. Between 7 and 11 December 1998 the applicant underwent various medical examinations, the results of which were noted in a medical report of 4 August 1999. According to this report, the applicant was suffering from a hernia in the groin, pain in various parts of his body and from major depression and an acute stress disorder, two psychiatric conditions that normally are caused by traumatic experiences such as rape and torture. The doctors concluded that the applicant’s complaints were consistent with his allegations of ill-treatment. While reaching this conclusion, the doctors from the Izmir branch of the Turkish Medical Association also noted the findings of the report of 26 November 1998 drawn up by Mr R.A.
15. On 17 December 1998 the applicant underwent surgery for the hernia in his groin, which had allegedly occurred as a result of the ill-treatment he had suffered in police custody.
16. On 17 January 1999 the applicant drafted a document for his lawyers in which he described in detail the alleged ill-treatment that he had suffered during his police custody between 17 and 25 November 1998. At the end of the document, he noted that the applicant’s representative before the Court and another advocate would bring proceedings on his behalf as his legal representatives.
17. On 11 May 2000 the applicant’s lawyer lodged a complaint with the Diyarbakır public prosecutor’s office that the applicant had been subjected to ill-treatment during his police custody. He submitted a copy of the medical report of 4 August 1999 along with his petition.
18. On 9 January 2002 the Diyarbakır public prosecutor invited the applicant’s representative to his office in order to make statements.
19. On 10 January 2002 the applicant’s representative made statements to the public prosecutor. He contended that the applicant had requested him to initiate proceedings on his behalf a few days before 11 May 2000, the date on which he had lodged a complaint on behalf of the applicant. The representative further noted that the applicant’s allegations were consistent with the findings of the report of 26 November 1998.
20. On 23 January 2002 the Diyarbakır public prosecutor invited the applicant to his office in order to make statements.
21. On 1 February 2002 the applicant made statements to the public prosecutor. He noted that he had requested his lawyer to lodge a complaint against the persons who had inflicted ill-treatment on him. He contended that his lawyer had told him that he had initiated proceedings. The applicant stated that he had not applied to the public prosecutor’s office himself. He finally requested that the police officers who had ill-treated him be punished.
22. On the same date the Diyarbakır public prosecutor issued a decision not to prosecute in respect of the applicant’s allegations of ill-treatment. In his decision, the public prosecutor noted that the applicant had been detained in police custody between 17 and 23 November 1998 and that the relevant medical reports did not reveal any sign of violence on the applicant’s person. The public prosecutor further noted that the applicant had applied to the Turkish Medical Association at the end of his custody period and that he should have lodged a complaint with the public prosecutor’s office instead.
23. On 26 February 2002 the applicant’s lawyer lodged an objection with the Siverek Assize Court against the Diyarbakır public prosecutor’s decision of 1 February 2002. He requested that persons who had been in police custody at the same time as the applicant be summoned to make statements. He further requested that the doctors who had drawn up the report of 4 August 1999 and Mr A.O., the doctor who had examined the applicant along with 110 other persons on 25 November 1998, be heard. The lawyer also requested that the police officers who had been on duty during the applicant’s detention in custody be determined and the photos of the applicant taken during his detention be included in the file, if there were any.
24. On 14 March 2002 a single judge at the Siverek Assize Court dismissed the applicant’s objection. In his decision, the judge noted that the applicant had been in police custody between 17 and 23 November 1998 and that the medical report of 23 November 1998, the date on which he was released, did not reveal any sign of violence on the applicant’s person. He further observed that the applicant had not alleged illtreatment before the public prosecutor at the Diyarbakır State Security Court on 25 November 1998, immediately after his detention in police custody. The judge finally noted that the applicant had applied to the Turkish Medical Association on 4 August 1999, and had lodged his complaint on 11 May 2000. The judge considered that the applicant’s allegations were dubious, since he had lodged his application a long time after his release from police custody.
25. A full description of the domestic law and practice at the relevant time may be found in Batı and Others v. Turkey (nos. 33097/06 and 57834/00, §§ 95-99, ECHR 2004-IV (extracts)).
VIOLATED_ARTICLES: 3


ITEMID: 001-97633
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF MOKHOV v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Violation of Art. 6-2;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Zdravka Kalaydjieva
TEXT: 4. The applicant was born in 1972 and lives in Kostroma. He is currently serving a sentence in correctional facility ZhKh–385/5 in the village of Lepley, Mordoviya.
5. On an unspecified date criminal proceedings were instituted against the applicant on charges of abuse of powers by a public official, aggravated bribery and forgery.
6. On 8 April 2000 the applicant was arrested and placed in custody on suspicion of aggravated murder and robbery.
7. On 18 April 2000 the applicant was officially charged with aggravated murder and robbery.
8. On 9 December 2000 the applicant was convicted of abuse of powers, aggravated bribery and forgery and sentenced to five years' imprisonment.
9. On 15 and 18 January 2001, whilst the pre-trial investigation into the murder and robbery was pending, the State local television company, KTRK, broadcast the Na grani (“On the Edge”) programme which contained an interview with Mr T., an investigator from the prosecutor's office of the Kostroma Region (“the prosecutor's office”), who informed the public that the applicant had committed a series of offences. In particular, he stated that:
“The murder was committed while the investigation into bribery and abuse of power [with which the applicant had been charged] had been pending for a sufficiently long time and it was possible to refer the case to a court. And we found out that Mokhov had committed a second, more serious, crime – a murder, connected to the robbery and attack.”
10. On 26 January 2001 the applicant lodged a civil claim against the prosecutor's office and KTRK. Referring to Article 49 of the Constitution of the Russian Federation, he sought compensation for non-pecuniary damage resulting from the alleged violation of the presumption of innocence.
11. On 13 June 2001 the Leninskiy District Court of Kostroma (“the district court”) held a hearing in the applicant's presence and decided that it could not examine the claim while the criminal proceedings against the applicant were pending, because it was essential to know the outcome of those proceedings in order to determine whether the disseminated information was true or false. Therefore, the district court ordered the proceedings to be suspended.
12. On 30 July 2001 the Kostroma Regional Court upheld the decision of 13 June 2001.
13. On 5 September 2002 the Kostroma Regional Court convicted the applicant of murder and robbery and sentenced him to twenty-two years' imprisonment. On 26 May 2003 the judgment became final.
14. On 25 June 2003 the district court informed the applicant that the proceedings in respect of his defamation claim had been resumed and a hearing had been scheduled for 9 July 2003. The court asked the applicant if he wished to continue with his claim, and requested him to submit written explanations.
15. In his reply of 28 June 2003 the applicant modified his statement of claims, withdrew the claim against KTRK and affirmed his wish to continue with his claim against the prosecutor's office. He also asked the court to examine the case in his presence.
16. On 9 July 2003 the district court held the hearing in the applicant's absence. It does not appear from the case materials that it examined the applicant's request to appear in the courtroom. Having studied the applicant's written submissions and having heard the representative of the prosecutor's office, it rejected the claim. According to the Government, the representative of the prosecutor's office advanced no new arguments against the claim during the hearing. The district court found that the impugned statement had been based on facts which had subsequently been established in the court judgment of 5 September 2002. With regard to arguments by the applicant that the investigator was not entitled to publicly state that the applicant was guilty until this had been proved according to law, the court said that, by the date of the broadcast, the applicant had already been charged with murder and robbery, which, under the Code of Criminal Procedure, was possible only if sufficient evidence existed. The issue of the applicant's absence was addressed in the district court's decision as follows:
“The plaintiff was not present at the hearing because he had been sentenced ... to twenty-two years' imprisonment... The court received [the plaintiff's] written comments about the claim made...”
17. The applicant appealed against this judgment. He claimed, inter alia, that the principle of equality of arms had been breached, as the court had refused to summon him and hear him in person.
18. On 21 January 2004 the applicant, then detained in the correctional facility in Mordoviya, was notified of the time and place of an appeal hearing in his defamation case.
19. On 4 February 2004 the Kostroma Regional Court held an appeal hearing in the absence of the parties and upheld the judgment of 9 July 2003 with minor changes. The appeal judgment, in so far as relevant, read as follows:
“...[the district] court ensured Mokhov's participation in the hearing of 13 June 2001 although the laws on civil procedure in force do not require the court to ensure the presence in a courtroom of persons kept in custody or sentenced to imprisonment.
[The district] court duly notified Mokhov of the date of the hearing. The plaintiff sent to the [district] court his written comments on the nature of his claims. The reasons given in those comments were studied and duly assessed by the [district] court.”
20. Article 49 of the Constitution of the Russian Federation provides that everyone accused of committing a crime shall be considered innocent until his guilt is proved according to the rules fixed by the federal law and confirmed by the sentence of a court which has come into legal force.
21. Article 151 of the Russian Civil Code provides that compensation for non-pecuniary damage is payable only when physical or moral damage has been inflicted on a person through actions which violate his or her rights.
22. By virtue of Articles 58 and 184 of the Russian Code of Civil Procedure, a court may hold a session outside the courthouse if, for instance, it is necessary to examine evidence which cannot be brought to the courthouse.
23. On several occasions the Constitutional Court of the Russian Federation has examined complaints by convicted persons whose requests for leave to appear in civil proceedings had been refused by courts. It has consistently declared the complaints inadmissible, finding that the contested provisions of the Code of Civil Procedure and the Penitentiary Code did not, as such, restrict the convicted person's access to court. It has emphasised, nonetheless, that the convicted person should be able to make submissions to the civil court, either through a representative or in any other way provided by law. If necessary, the hearing may be held at the location where the convicted person is serving his or her sentence or, alternatively, the court hearing the case may instruct the court having territorial jurisdiction over the correctional colony to obtain the applicant's submissions or carry out any other procedural steps (decisions no. 478-O of 16 October 2003, no. 335-O of 14 October 2004, and no. 94-O of 21 February 2008).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
6-2


ITEMID: 001-105378
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: GRANDCHAMBER
DATE: 2011
DOCNAME: CASE OF SABEH EL LEIL v. FRANCE
IMPORTANCE: 2
CONCLUSION: Violation of Art. 6-1;Pecuniary and non-pecuniary damage - award
JUDGES: Angelika Nußberger;Christos Rozakis;Corneliu Bîrsan;David Thór Björgvinsson;Françoise Tulkens;George Nicolaou;Isabelle Berro-Lefèvre;Jean-Paul Costa;Julia Laffranque;Karel Jungwiert;Lech Garlicki;Mark Villiger;Mihai Poalelungi;Nicolas Bratza;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 7. Under a contract of indefinite duration dated 25 August 1980, the applicant was appointed by the State of Kuwait as accountant in the Kuwaiti embassy in Paris. He became head accountant on 17 April 1985, when a note by the Ambassador entitled “Organisation of Accounts Department at Kuwaiti Embassy in Paris” set out the applicant’s duties as follows:
“(a) To oversee all the work of the accounts department.
(b) To supervise the staff working in that department in respect of the tasks assigned to them, and to ensure compliance with the rules governing working hours and the volume and distribution of work.
(c) The above-mentioned accountant must sign all payment orders, accounting invoices and everything connected with that activity.
(d) In addition the accountant is entrusted with the management of administrative tasks.
(e) The accountant shall be accountable to his superiors for any shortcomings in respect of everything connected with the work of his department.”
8. On 3 December 1999 some twenty employees of the Embassy signed a statement to the effect that the applicant had, since his appointment, unofficially assumed the role of staff representative, with the result that he had resolved all disputes between the staff and the diplomatic mission for the past nineteen years.
9. A certificate of employment dated 19 January 2000 indicates that the applicant “is employed by the Embassy as Head Accountant”.
10. On 27 March 2000 the applicant’s contract was terminated on the following economic grounds:
“The restructuring of all the Embassy’s departments, in accordance with general instructions from the Ministry of Foreign Affairs of the State of Kuwait.
The Embassy is obliged to abolish your post as a result of the new regulations of the Ministry of Foreign Affairs of the State of Kuwait.”
11. Disagreeing with the reasons given for the termination, the applicant brought proceedings in the Paris Employment Tribunal (conseil de prud’hommes) seeking various sums in compensation for dismissal without genuine or serious cause.
12. In a judgment of 29 November 2000, the Employment Tribunal began by refusing to allow the objection to admissibility raised by the State of Kuwait, finding as follows:
“A plea of inadmissibility has been raised on grounds of jurisdictional immunity.
Whilst Article 31 of the Vienna Convention provides that diplomatic agents enjoy immunity from the criminal jurisdiction of the receiving State, and also from its civil and administrative jurisdiction, the latter immunity does not cover actions relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.
Mr Farouk Sabeh El Leil was recruited and employed in France, under a contract of indefinite duration signed in Paris and performing [sic] in French territory.
His pay statements bear a SIRET [registration] number.
The letter summoning him to a preliminary meeting fully satisfies the provisions of Article L.122-14-4 of the Labour Code, indicating that Mr Farouk Sabeh El Leil was entitled to be assisted by a third party from the list kept by the préfecture.
In the present case, the duties of head accountant entrusted to Mr Farouk Sabeh El Leil in an internal management context fell within the framework of an expressly private-law activity and the jurisdiction of the ordinary French courts, as the employer has acknowledged through the above-mentioned elements.”
13. On the merits, the Employment Tribunal found that the termination of the applicant’s employment “which was decided abruptly after twenty years of irreproachable work without punishment or criticism”, had not been based on a genuine and serious cause. It awarded the applicant a sum representing twelve months of salary by way of compensation for dismissal without a genuine and serious cause, plus compensation in lieu of notice, together with sums in respect of unpaid overtime, time off in lieu that he had not been able to take, annual leave, and his inability to register with the ASSEDIC (“Association for employment in industry and commerce”) from which he was entitled to receive unemployment benefit, amounting to a total of 539,358 francs (equivalent to 82,224.60 euros). Moreover, the Employment Tribunal ordered the employer to issue the applicant with a certificate of employment and two pay statements, failing which it would be fined 1,000 francs per day.
14. Disagreeing with the amount of the award, the applicant lodged an appeal against the judgment.
15. In a judgment of 22 October 2002 the Paris Court of Appeal set aside that judgment, finding as follows:
“Admissibility of the claims
The State of Kuwait argued that Mr Sabeh El Leil’s claims were inadmissible on account of its jurisdictional immunity.
Mr Sabeh El Leil challenged the plea of inadmissibility, arguing that such immunity did not extend to proceedings concerning contracts of employment.
He considers that his duties as head accountant fell expressly within the framework of a private-law activity rather than an activity of governmental authority.
Mr Sabeh El Leil’s claims are directed against the State of Kuwait, represented by its embassy and its Ambassador in Paris and not against the embassy’s director himself.
It must therefore be ascertained whether, in the present case, the State of Kuwait enjoys the jurisdictional immunity afforded to foreign States.
Mr Sabeh El Leil’s last post was that of head accountant in the embassy’s accounts department.
He also assumed certain additional responsibilities: responsibility for administrative matters, responsibility for legal affairs, responsibility for the payment and follow-up of financial contributions concerning the Kuwait Boundary Demarcation Commission, and responsibility for supervising the bank accounts of the Council of Arab Embassies [sic].
Mr Sabeh El Leil, in view of his level of responsibility and the nature of his duties as a whole, did not perform mere acts of management but enjoyed a certain autonomy which meant that he carried out his activities in the interest of the public diplomatic service.
He thus participated in acts of governmental authority of the State of Kuwait through its diplomatic representation in France.
His claims against the State of Kuwait are thus inadmissible by virtue of the principle of jurisdictional immunity of foreign States.”
16. The applicant appealed against that judgment to the Court of Cassation. In his full pleadings he challenged the finding that his claims against the State of Kuwait were inadmissible. He invoked a breach of Article 455 of the New Code of Civil Procedure, on the ground that the judgment had not given sufficient reasons, since the inadmissibility had been based:
“on the mere assertion that outside his accounting duties [he] assumed responsibilities in administrative matters, legal affairs ..., leading to the conclusion that in view of his level of responsibility and the nature of his duties as a whole, he did not perform mere acts of management but enjoyed a certain autonomy which meant that he carried out his activities in the interest of the public diplomatic service and participated in acts of governmental authority of the State of Kuwait ...”
He developed his arguments as follows:
“The judgment appealed against purportedly applied the principle whereby ‘foreign States and bodies acting for them or on their behalf enjoy jurisdictional immunity not only for acts of governmental authority but also for acts performed in the interest of a public service’ ...
This principle implies, conversely, that the immunity of the foreign State from jurisdiction does not apply, in matters of employment contracts, where the employee had ‘no particular responsibility in the performance of public service, such that his dismissal constituted an act of administration’ ...
That was precisely the situation of [the applicant], who performed accountancy duties only.”
17. On 23 March 2005 the Court of Cassation, ruling in the context of the preliminary admissibility procedure for appeals on points of law, as provided for by Article L. 131-6 of the Code of Judicial Organisation, held that the ground of appeal was “not such as to warrant admitting the appeal on points of law”.
18. State immunity from jurisdiction is governed by customary international law, the codification of which is enshrined in the United Nations Convention on Jurisdictional Immunities of States and their Property of 2 December 2004 (“the 2004 Convention”). The principle is based on the distinction between acts of sovereignty or authority (acte jure imperii) and acts of commerce or administration (acte jure gestionis).
19. Article 11 (Contracts of employment) of the convention reads as follows:
“1. Unless otherwise agreed between the States concerned, a State cannot invoke immunity from jurisdiction before a court of another State which is otherwise competent in a proceeding which relates to a contract of employment between the State and an individual for work performed or to be performed, in whole or in part, in the territory of that other State.
2. Paragraph 1 does not apply if:
(a) the employee has been recruited to perform particular functions in the exercise of governmental authority;
(b) the employee is:
(i) a diplomatic agent, as defined in the Vienna Convention on Diplomatic Relations of 1961;
(ii) a consular officer, as defined in the Vienna Convention on Consular Relations of 1963;
(iii) a member of the diplomatic staff of a permanent mission to an international organization or of a special mission, or is recruited to represent a State at an international conference; or
(iv) any other person enjoying diplomatic immunity;
(c) the subject-matter of the proceeding is the recruitment, renewal of employment or reinstatement of an individual;
(d) the subject-matter of the proceeding is the dismissal or termination of employment of an individual and, as determined by the head of State, the head of Government or the Minister for Foreign Affairs of the employer State, such a proceeding would interfere with the security interests of that State;
(e) the employee is a national of the employer State at the time when the proceeding is instituted, unless this person has the permanent residence in the State of the forum; or
(f) the employer State and the employee have otherwise agreed in writing, subject to any considerations of public policy conferring on the courts of the State of the forum exclusive jurisdiction by reason of the subject-matter of the proceeding.”
20. In the Draft Articles on Jurisdictional Immunities of States and their Property, adopted by the International Law Commission at its forty-third session in 1991, and submitted to the General Assembly at that session, Article 11 read as follows:
“1. Unless otherwise agreed between the States concerned, a State cannot invoke immunity from jurisdiction before a court of another State which is otherwise competent in a proceeding which relates to a contract of employment between the State and an individual for work performed or to be performed, in whole or in part, in the territory of that other State.
2. Paragraph 1 does not apply if:
(a) the employee has been recruited to perform functions closely related to the exercise of governmental authority;
(b) the subject of the proceeding is the recruitment, renewal of employment or reinstatement of an individual;
(c) the employee was neither a national nor a habitual resident of the State of the forum at the time when the contract of employment was concluded;
(d) the employee is a national of the employer State at the time when the proceeding is instituted; or
(e) the employer State and the employee have otherwise agreed in writing, subject to any considerations of public policy conferring on the courts of the State of the forum exclusive jurisdiction by reason of the subject-matter of the proceeding.”
21. In the commentary on that Article the Commission indicated as follows:
“Paragraph 2 (b) is designed to confirm the existing practice of States in support of the rule of immunity in the exercise of the discretionary power of appointment or non-appointment by the State of an individual to any official post or employment position. ... So also are the acts of ‘dismissal’ or ‘removal’ of a government employee by the State, which normally take place after the conclusion of an inquiry or investigation as part of supervisory or disciplinary jurisdiction exercised by the employer State. This subparagraph also covers cases where the employee seeks the renewal of his employment or reinstatement after untimely termination of his engagement. The rule of immunity applies to proceedings for recruitment, renewal of employment and reinstatement of an individual only. It is without prejudice to the possible recourse which may still be available in the State of the forum for compensation or damages for ‘wrongful dismissal’ or for breaches of obligation to recruit or to renew employment.”
22. The 2004 Convention on Jurisdictional Immunities of States and their Property was signed by France on 17 January 2007. The Bill authorising its ratification is currently being examined by the National Assembly, the Senate having approved the following text at First Reading on 22 December 2010:
“Single Article
The ratification of the United Nations Convention on Jurisdictional Immunities of States and their Property, adopted on 2 December 2004 and signed by France on 17 January 2007 is hereby authorised.”
23. For a more comprehensive overview see Cudak v. Lithuania ([GC], no. 15869/02, §§ 25 et seq., ECHR 2010...).
24. The Court of Cassation considers that a foreign State only enjoys jurisdictional immunity when the act giving rise to the dispute is an act of governmental authority or has been performed in the exercise of a public service (Court of Cassation, First Civil Division, 25 February 1969, no. 67-10243, Bull. I, no. 86). In other words it verifies, on a case-by-case basis, whether the act, by its nature or purpose, has contributed to the exercise of the foreign State’s sovereignty, as opposed to an act of administration (Court of Cassation, Combined Divisions, 20 June 2003, appeals nos. 00-45629 and 00-45630, Bull. Ch. M. no. 4).
25. Applying this criterion, the Court of Cassation found that jurisdictional immunity could not be granted in a dispute concerning an embassy employee who had no particular responsibility in the exercise of the public diplomatic service (Court of Cassation, First Civil Division, 11 February 1997, appeal no. 94-41871, Bull. I no. 49, for a caretaker; Court of Cassation, Employment Division, 10 November 1998, appeal no. 96-41534, Bull. V no. 479, concerning a nurse-medical secretary; and Court of Cassation, Employment Division, 14 December 2005, appeal no. 03-45973, in respect of a senior clerk in the national section of a consulate). The same principle applies where a State decides to close a consular mission: whilst it enjoys jurisdictional immunity as regards the assessment of the reasons for the closure decision, the French courts retain the power to verify the reality of the closure and to rule on the consequences of any redundancy caused thereby (Court of Cassation, Employment Division, 31 March 2009, appeal no. 07-45618, Bull. V no. 92).
26. The assessment of that criterion, however, falls within the unfettered discretion of the Court of Appeal for the final decision on the facts and evidence (Court of Cassation, Employment Division, 9 October 2001, appeal no. 98-46214, concerning a translator in the passport office).
27. The relevant provision of the Code of Civil Procedure reads as follows:
“Judgments shall set forth succinctly the respective claims of the parties and their grounds. Such presentation may take the form of a reference to the pleadings of the parties with an indication of their date. Judgments shall be reasoned.
They shall state the decision in an operative paragraph.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1