ITEMID: 001-57591
LANGUAGEISOCODE: ENG
RESPONDENT: BEL
BRANCH: CHAMBER
DATE: 1983
DOCNAME: CASE OF VAN DER MUSSELE v. BELGIUM
IMPORTANCE: 2
CONCLUSION: No violation of Art. 4;No violation of Art. 14+4;No violation of P1-1
JUDGES: C. Russo
TEXT: 9. The applicant is a Belgian national born in 1952. He resides in Antwerp where he exercises the profession of avocat (lawyer). After being enrolled as a pupil avocat on 27 September 1976, he at once opened his own chambers without ever working in the chambers of another avocat; his pupil-master, however, entrusted him with a number of cases and gave him some payment for the work done in regard to them.
Mr. Van der Mussele terminated his pupillage on 1 October 1979 and has since then been entered on the register of the Ordre des avocats (Bar Association).
10. On 31 July 1979, the Legal Advice and Defence Office of the Antwerp Bar appointed Mr. Van der Mussele, pursuant to Article 455 of the Judicial Code, to defend one Njie Ebrima, a Gambian national. The latter, who had been arrested two days earlier on suspicion of theft and of dealing in, and possession of, narcotics, had applied under Article 184 bis of the Code of Criminal Procedure for the assistance of an officially appointed avocat.
11. On 3 and 28 August 1979, Mr. Ebrima appeared before a Chamber (chambre du conseil) of the Antwerp Court of First Instance (tribunal de première instance), which was supervising the investigation, for the purpose of a decision as to whether the warrant of arrest issued against him by the investigating judge should remain in force. The Chamber confirmed the warrant on both occasions. It also added to the initial charges a further count of publicly using a false name. Mr. Ebrima appealed against these two orders, but the Indictments Chamber of the Antwerp Court of Appeal upheld them on 14 August and 11 September respectively.
On 3 October 1979, the Court of First Instance sentenced him to six months’ and eight days’ imprisonment for theft, public use of a false name and illegal residence; he was acquitted on the remaining charges. On his appeal, the Court of Appeal on 12 November reduced the length of the sentence to that of the period he had spent in detention on remand.
The applicant had acted for Mr. Ebrima throughout these proceedings and estimated that he devoted from seventeen to eighteen hours to the matter. Mr. Ebrima was released on 17 December 1979 following representations made by the applicant to the Minister of Justice; he had in the meantime been placed at the disposal of the immigration police with a view to deportation.
12. The following day, the Legal Advice and Defence Office notified Mr. Van der Mussele - whose pupillage had finished more than two and a half months earlier (see paragraph 9 above) - that it was releasing him from the case and that because of Mr. Ebrima’s lack of resources no assessment of fees and disbursements could be made against him. The latter amounted on this occasion to 3,400 BF, made up of 250 BF for preparation of the case-file, 1,800 BF for correspondence, 1,300 BF for travel to and from the prison, the Court of First Instance and the Court of Appeal, and 50 BF in respect of court costs for the copy of a document.
13. The applicant stated that during his pupillage he had dealt with approximately 250 cases, including about 50 cases - representing some 750 hours of work - on which he had acted as officially appointed avocat. He also said that his net monthly income before tax was only 15,800 BF in his first and second years, increasing to 20,800 BF in the third.
14. Although it is in various respects regulated by legislation, the profession of avocat in Belgium is a liberal profession; under Article 444 of the Judicial Code, "avocats exercise their profession freely in the interests of justice and truth".
15. In each of the country’s twenty-seven judicial districts, there is an Ordre des avocats; it is independent of the executive and endowed with legal personality in public law and its Council takes decisions "without appeal" with regard to entry on the register of avocats and admission to pupillage (Articles 430 and 432 of the Judicial Code).
A pupillage normally lasting three years is a pre-requisite to entry on the register of avocats (Article 434 and the second paragraph of Articles 435 and 436). Subject to the powers of the General Council of the National Ordre, the Council of the district Ordre determines the obligations of pupils (Articles 435 and 494). In the main these consist of attending at a pupil-master’s chambers, attending hearings, following courses on the rules of professional conduct and the art of advocacy (Article 456, third paragraph) and acting as defence counsel in cases assigned by the Legal Advice and Defence Office (Article 455). The Council of the Ordre ensures that these obligations are complied with and may, if need be, prolong the pupillage "without prejudice to the right to refuse entry on the register"; any pupil who is unable, after five years at the latest, to show that he or she has satisfied the said obligations "may be omitted from the roll" of pupils (Article 456, second and fourth paragraphs).
Pupils in principle enjoy the same rights as their colleagues who are already entered on the register of avocats. However, they may not plead before the Court of Cassation or the Conseil d’État (Article 439), vote in elections of the chairman or other members of the Council of the Ordre (Article 450) or deputise for judges and members of the public prosecutor’s department.
16. In the oath that he takes at the end of his pupillage, the avocat undertakes, amongst other things, not to advise or appear in any case which he does not consider to the best of his knowledge and belief to be just (Article 429). Subject to the exceptions provided for by law, for example in Article 728 of the Judicial Code and Article 295 of the Code of Criminal Procedure, avocats - including pupil avocats - enjoy an exclusive right of audience before the courts (Article 440 of the Judicial Code). They pay a subscription to the Ordre (Article 443) and social security contributions.
17. The Council of the Ordre sanctions or punishes as a disciplinary matter offences and misconduct, without prejudice, where appropriate, to proceedings before the courts (Article 456, first paragraph). It will hear disciplinary cases on application made by its chairman, either of his own motion or following a complaint or after a written notification from the procureur général (public prosecutor) (Article 457). The Council may, depending on the circumstances, warn, censure, reprimand, suspend for a maximum of one year or strike a name off the register of avocats or the roll of pupils (Article 460).
Both the avocat concerned and the procureur général may challenge such a decision - finding the avocat guilty or not guilty - by applying to the competent disciplinary appeal board (Articles 468 and 472). The disciplinary appeal board is composed of a chairman (who is the first president of the Court of Appeal or a president of a chamber delegated by him), four assessors (who are avocats) and a secretary (who is a member or former member of the Council of the Ordre des avocats); the procureur général or a judicial officer from his department delegated by him fulfils the functions of prosecuting authority (Articles 473 and 475).
The avocat concerned or the procureur général may refer the decision of the disciplinary appeal board to the Court of Cassation (Article 477).
18. In Belgium, as in many other Contracting States, there exists a long tradition that the Bar should provide legal representation, if need be on a free basis, for indigent persons. At the time of the relevant facts, the Council of the Ordre des avocats was under a duty to make provision for "the assistance of persons of insufficient means" by setting up a "Legal Advice and Defence Office" in such manner as it should determine (Article 455, first paragraph, of the Judicial Code). "Obviously ill-founded cases [were not to] be allocated" (second paragraph of the same Article), but in criminal matters the Legal Advice and Defence Office had to make an officially appointed - or "pro Deo" - avocat available to any indigent accused who so requested at least three days before the hearing (Article 184 bis of the Code of Criminal Procedure).
Officially appointed avocats were thus designated by the Office by virtue of a statutory competence conferred by the State. In Antwerp and Liège a system of rotation was used whereas in Brussels the matter was dealt with on a more flexible basis. The Office almost always selected pupil avocats who, if need be, had to continue acting in the case even after the end of their pupillage, as occurred in the present circumstances (see paragraph 12 above). It nonetheless happened - in less than one per cent of the cases - that a difficult case was entrusted to a more experienced avocat.
19. Under the third paragraph of Article 455 of the Judicial Code, pupil avocats were required to "report to the [Legal Advice and Defence] Office on the steps they [had] taken in the cases entrusted to them"; such cases accounted on average for approximately one quarter of their working time, especially during their third year. The Ordres des avocats would decline to enter a pupil avocat on the register unless he had acted as officially appointed avocat on a sufficient number of occasions; the Antwerp Ordre enjoyed considerable discretion in the matter since no minimum or maximum was laid down in its pupillage regulations.
Pupil avocats could invoke the so-called "conscience clause" laid down in Article 429 of the Judicial Code (see paragraph 16 above) or objective grounds of incompatibility. In the event of an unjustified refusal to deal with cases that the Office wished to allocate to him, the Council of the Ordre could extend the pupillage of a pupil avocat to a maximum period of five years, strike his name off the roll of pupils or refuse his application for entry on the register of avocats for failure to perform fully his obligations (Article 456, second and fourth paragraphs).
20. Officially appointed avocats were entitled neither to remuneration nor to reimbursement of their expenses. Nevertheless, the Legal Advice and Defence Office could, "depending upon the circumstances, .... fix the amount which the [assisted] party [was] required to pay either by way of advance provision or as fees" (Article 455, final paragraph, of the Judicial Code). In practice such awards tended to be somewhat exceptional - in approximately one case out of four at Antwerp - and, what is more, pupil avocats only succeeded in actually recovering a fraction - roughly one quarter - of the amounts so fixed.
21. The position described in the preceding paragraph has changed in one respect subsequent to the end of the applicant’s pupillage: an Act of 9 April 1980 "intended to furnish a partial solution to the problem of legal aid and regulating the remuneration of pupil avocats appointed to provide legal aid" has amended Article 455 by, inter alia, inserting the following provisions:
"The State shall grant to the pupil avocat appointed by the Legal Advice and Defence Office compensation in respect of the services which he was appointed to render.
After obtaining the opinion of the General Council of the National Ordre des avocats, the King shall prescribe, by Decree laid before the Council of Ministers, the conditions governing the granting, scale and manner of payment of such compensation."
In certain circumstances, the State will be able to take action against the assisted person to recover the compensation awarded.
The Act is not retroactive. Furthermore, for the moment it remains inoperative since budgetary reasons have up till now prevented the bringing into force of the Royal Decree provided for under Article 455.
22. The official appointment of an avocat should not be confused with two other possibilities which are likewise often included in the notion of legal aid, namely
- "official assignment", which is provided for under the law in various circumstances where the intervention of an avocat is obligatory, independently of the means of the person concerned (Articles 446, second paragraph, and 480 of the Judicial Code, Article 290 of the Code of Criminal Procedure, etc.);
- "legal aid" in the narrow sense, which "consists of exempting, in whole or in part, persons whose income is insufficient to meet the costs of proceedings, including extrajudicial proceedings, from paying stamp duty, registration duty, registry and copying fees and any other expenditure involved", and of providing "the services of public and publicly appointed officers free" for such persons (Articles 664 and 699 of the Judicial Code).
23. Indigent persons requiring the services of notaries, bailiffs or avocats of the Court of Cassation may apply for the appointment by the Legal Aid Bureau (see paragraph 22 above) of the persons who are under a duty to give their services free of charge (Articles 664, 665, 685 and 686 of the Judicial Code).
The State reimburses the latter persons for their out-of-pocket expenditure (Article 692) but grants no remuneration, the one exception being bailiffs who receive the equivalent of one quarter of their usual fees (Article 693).
NON_VIOLATED_ARTICLES: 14
4


ITEMID: 001-95067
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF STOROZHUK v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property;Violation of Article 13 - Right to an effective remedy
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Renate Jaeger
TEXT: 4. The applicant was born in 1951 and lives in the town of Chervonograd, Ukraine.
5. On 10 November 2003 the Chervonograd Court ordered the State company Lvivvugilllya to pay the applicant 42,000 Ukrainian hryvnias (UAH) in compensation for the non-pecuniary damage caused by the company's failure to provide him with an apartment.
6. On 17 December 2003 the State Bailiffs' Service initiated enforcement proceedings in respect of the above judgment.
7. On 30 December 2005 the enforcement proceedings were terminated in accordance with the Law of Ukraine on Measures to ensure the Stable Operation of Fuel and Energy Sector Enterprises.
8. The judgment given in the applicant's favour remains unenforced.
9. The Law of 23 June 2005 on Measures to ensure the Stable Operation of Fuel and Energy Sector Enterprises (Закон України „Про заходи, спрямовані на забезпечення сталого функціонування підприємств паливно-енергетичного комплексу” від 23 червня 2005 року) introduced a new mechanism for the payment and amortisation of companies' debts for energy resources. It also introduced a special register of companies concerned by debt payments and amortisation under its provisions. A company's inclusion on the register suspends any enforcement proceedings against it. The domestic courts will also dismiss any request to initiate insolvency or liquidation proceedings against the company in question. By the most recent amendment to the Law, enacted on 16 December 2008, the effect of the debt payment and amortisation programme was extended until 1 January 2011.
10. The remainder of the relevant law is summarised in the judgment of Sokur v. Ukraine (no. 29439/02, §§ 17-22, 26 April 2005).
VIOLATED_ARTICLES: 13
6
P1
VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-60932
LANGUAGEISOCODE: ENG
RESPONDENT: NOR
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF O. v. NORWAY
IMPORTANCE: 1
CONCLUSION: Violation of Art. 6-2;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award
TEXT: 9. The applicant was born in 1955 and lives in Norway.
10. By an indictment of 23 June 1993, the applicant and his father were charged under Articles 195 § 1 (sexual relations with a minor) and 207 (sexual relations with a close relative) of the Criminal Code (straffeloven) with having committed sexual offences during the periods from 1985 to 1989 and 1988 to 1991 respectively against the applicant’s daughter, L., who was born on 18 October 1981.
11. By a judgment of 1 June 1994, the Eidsivating High Court (lagmannsrett), sitting with three judges and a jury, noted that the jury had answered the questions on the charges in the negative and therefore acquitted the applicant and his father. No appeal was lodged against the judgment, which consequently gained legal force.
12. Subsequently, on 29 August 1994, the applicant and his father filed a petition with the High Court requesting compensation under Articles 444 and 446 of the 1981 Code of Criminal Procedure (straffeprosessloven) for pecuniary and non-pecuniary damage caused by the criminal proceedings against them. The father sought, in the alternative, compensation under Articles 445 and 446.
13. In the compensation proceedings, the High Court, sitting with the same judges as in the trial, received written pleadings but did not hold an oral hearing. By a decision (kjennelse) of 25 January 1995, it rejected the applicant’s claim but awarded his father 30,000 Norwegian kroner in compensation under Articles 444 and 446.
In the introduction to its decision, the High Court reiterated certain information derived from the criminal proceedings, notably the specific contents of the charges of sexual abuse, the jury’s verdict and the acquittal by the High Court.
As regards the applicant’s claim, the High Court stated, inter alia:
“The High Court notes that, pursuant to Articles 444 or 446 ... of the Code of Criminal Procedure, it is a condition for obtaining compensation that it must be shown to be probable that the accused did not carry out the act which formed the basis of the charge. Accordingly, in order to award compensation it must be shown on the balance of probabilities that the accused did not commit the acts in respect of which he has been acquitted.
The High Court finds it probable that the victim [L.], born on 18 October 1981, has been subjected to sexual abuse in the form of sexual intercourse. Reference is made to the medical examination carried out ... on 21 November 1991 ...
[L.’s] father and mother separated in 1989 when the mother moved to Oslo together with [L.] ... As a witness, the mother made statements about [L.’s behaviour] before as well as after the separation. This could indicate that she has been subjected to sexual abuse. The child’s behaviour resulted in the mother contacting the ... institute in the summer of 1991 where [L.] underwent individual and family therapy, as did her mother and her cohabitant.
As a witness during the trial, Ms Anne Okstad, a psychologist, ... explained [L.’s] behaviour. In the light of this and of talks and symbolic games with [L.], Ms Okstad concluded that there was no doubt that [L.] had been subjected to sexual abuse.
The question is therefore now whether on the balance of probabilities other persons than the defendants are behind the abuses. In this respect the judicial examinations of [L.] are of central importance and the witness evidence as to what [L.] has stated is significant. From the outset there had been no concrete information in this case about other offenders. [L.] has been subjected to judicial examinations three times ... In connection with the first examination the judge recorded that no information had been submitted which could justify a concrete suspicion of sexual abuse having been committed against [L.]. During the second examination [the applicant] was mentioned in connection with a description of immoral sexual relations and during the third examination even the grandfather was mentioned. During the examinations the information was submitted, without spontaneity, in part under pressure from the examining judge, and in part through writing down names and events on pieces of paper.
According to the mother’s and her partner’s statements, [L.] had referred to both [the applicant] and the grandfather. It appeared as if the child had been under pressure to speak in order to enable the family to calm down. Ms Okstad stated that [L.], in the course of a realistic conversation, had referred to ‘intrusions, pawing, threats and aggression by [the applicant]’ and that she had spontaneously confirmed that abuse had taken place several times. She also appeared to have been agitated both during and after these conversations.
Considering the case as a whole, the High Court does not find it shown on the balance of probabilities that [the applicant] did not engage in sexual intercourse with his daughter. ...
[The applicant’s] claim for compensation is thus dismissed. In the light of this conclusion, there is no reason to order the reimbursement of his costs.”
14. The applicant appealed against that decision to the Supreme Court (Høyesterett). On 20 April 1995 the Appeals Leave Committee of the Supreme Court (Høyesteretts kjæremålsutvalg) upheld the High Court’s decision, stating, inter alia:
“The High Court has correctly taken as its starting-point the view that under Articles 444 and 446 ... of the Code of Criminal Procedure it is a condition that it must be shown to be probable that the accused did not carry out the act which formed the basis for the charge against him and that this implies that on the balance of probabilities [sannsynlighetsovervekt] the accused did not commit the acts in respect of which he was acquitted. In this connection the Committee refers to [its decision reported in] Norsk Retstidende 1994, p. 721, where the first voting judge stated, with the approval of the other judges, inter alia:
’Compensation pursuant to Article 444, first sentence, must – when the accused is acquitted or the case against him is discontinued – cover the financial losses he has suffered if “it has been shown to be probable [gjort sannsynlig]” that he has not carried out the act which formed the basis for the charges. It is the accused who carries the burden of proof that he did not carry out the act. It is sufficient that it is more probable than not. I do not agree with counsel for the defence in that the accused has discharged the burden of proof where both alternatives, on the basis of the available evidence, appear to be equally likely. In this assessment the ordinary standards of evidence must apply and the requirements in respect of the strength of the evidence must then to some extent be adapted to the ability of the accused to show that he did not carry out the act. Given the manner in which the provision has been formulated, the situation may easily arise that an acquittal is not sufficient to justify a compensation claim where the accused is unable to discharge the burden of proof. I should like to stress that the refusal of a compensation claim does not imply that the previous acquittal is undermined or that the acquittal is open to doubt. The compensation claim must be determined on an independent basis and the rules of evidence applying in such compensation cases do not differ from those which apply to ordinary compensation claims. The legislator has as a starting-point opted for a solution whereby the financial burden caused by the institution of criminal proceedings which are discontinued or which end with an acquittal must be borne by the accused unless he is able to show that it is probable that he did not commit the act.’
The High Court has found it probable that [the applicant’s] daughter was subjected to sexual abuse ... Considering the case as a whole, the High Court has further concluded that it has not been shown that on the balance of probabilities [the applicant] did not engage in sexual intercourse with his daughter. The Appeals Leave Committee finds no reason to depart from the High Court’s assessment of the evidence, which is based on the judges’ participation at the trial hearing in this case, where it must be deemed vital that the court had the opportunity to hear directly the accused and the witnesses – something which the Committee is not empowered to do ...
The Appeals Leave Committee accordingly finds that the evidence is not such as to fulfil the conditions for compensation under Article 444 of the Code of Criminal Procedure; nor, as a consequence, are the conditions for awarding damages under Article 446 satisfied.”
15. Under the Norwegian jury system, when an accused is acquitted the jury is not entitled to disclose whether any of its members held a different opinion, and no records are kept which could disclose that a negative answer as to the applicant’s guilt was not unanimous. Only two conclusions are possible in a criminal case – guilt or acquittal (see Articles 365, 366, 372 and 373 of the Code of Criminal Procedure). There is no third alternative, such as that formerly known in some other European countries, where a criminal charge could result in the finding that there was not sufficient evidence to establish guilt.
16. Articles 444 to 446 of the Code of Criminal Procedure provide for compensation where a person has been acquitted or the proceedings have been discontinued. The provisions read as follows:
“If a person charged is acquitted or the proceedings against him are discontinued, he may claim compensation from the State for any damage that he has sustained as a result of the prosecution if it is shown to be probable that he did not carry out the act that formed the basis for the charge. If a sentence of imprisonment or other custodial sanction has already been served, any damage resulting from this shall be compensated without regard to what has been shown to be probable.
Compensation shall not be awarded where the person charged, by making a confession or otherwise, has wilfully instigated the prosecution or the conviction.
If he has otherwise contributed to the damage by negligence, the compensation may be reduced or dispensed with entirely.”
“Even if the conditions prescribed in Article 444 are not fulfilled, the court may award the person charged compensation for special or disproportionate damage as a consequence of the criminal proceedings whenever this appears to be reasonable in the circumstances.”
“If the conditions relating to compensation prescribed in Articles 444 or 445 are fulfilled, the court may, when special reasons so indicate, award the person charged a suitable amount as redress for the indignity or other damage of a noneconomic nature that he has suffered as a result of the prosecution.”
17. In addition, there are certain formal conditions set out in Article 447 for the submission and examination of a compensation claim made under Articles 444 to 446:
“Any claim for compensation or redress must be submitted not later than three months after the person charged has been informed of the decision that finally settles the case. The provisions of Article 318, first paragraph, shall apply correspondingly.
If the case has been concluded without any judicial examination of the evidence relating to the issue of guilt, the claim shall be submitted to a court of summary jurisdiction.
Otherwise the claim shall be submitted to the court that is to conduct or has last conducted any such trial. If the claim is submitted to the district court or the city court, but has not been decided when an appeal against the assessment of evidence in relation to the issue of guilt proceeds to an appeal hearing, the court of appeal shall also decide the question of compensation. When examining the claim, the court shall as far as possible sit with the same judges who decided the criminal case. In the court of appeal, lay judges or the selected jurors who join the court pursuant to Article 376 (e) shall not take part unless the decision is made at the same court sitting as that at which judgment is given in the case.”
18. Compensation after acquittal or discontinuation of the proceedings is not automatic and is not awarded unless the conditions in the above-cited Articles are met.
19. When compensation is awarded to persons who are considered innocent as they have been acquitted or the proceedings against them have been discontinued, Articles 445 and 446 are the general provisions and, de facto, the main provisions providing for compensation.
20. In the present case the applicant, unlike his father, did not seek compensation under Articles 445 and 446. Instead, the applicant claimed compensation under the special provision in Article 444, together with Article 446. Under this provision, the State may be liable to pay compensation even in the absence of any proof of negligence or fault on the part of the authorities. The liability of the State to pay compensation is strict where it has been shown to be probable that the claimant did not carry out the act with which he or she was charged. In the assessment of that probability, none of the other constitutive elements of a criminal offence, such as criminal intent, is in issue.
21. According to the case-law of the Norwegian Supreme Court, the evidentiary standard applying in respect of liability to pay compensation under Article 444 differs from that applying to criminal liability. Whereas in criminal proceedings it is for the prosecution to prove beyond reasonable doubt that the defendant committed the impugned act, in compensation proceedings it is for the claimant to show that, on the balance of probabilities, it was more than 50% probable that he or she did not carry out the act that formed the basis of the charge. The requirement of proof in compensation cases may nevertheless be adjusted (i.e. to less than 50%) in the light of the claimant’s ability to adduce evidence, especially where a long time has elapsed since the alleged criminal act. The competent court has to make a new assessment, independently of the acquittal, of all the evidence available in order to establish whether it is probable that the claimant did not carry out the act which formed the basis of the charge.
22. It is not a requirement for obtaining compensation that the claimant should adduce new evidence. The compensation claim may thus be made with reference to the evidence made available in the criminal proceedings or obtained by the court of its own motion.
23. In 1996 the Norwegian Council on Criminal Law (Straffelovrådet) made a recommendation to the Ministry of Justice that Articles 444 to 446 of the Code of Criminal Procedure be amended in a number of respects, including the abolition of the condition whereby the claimant had to prove that on the balance of probabilities he or she had not carried out the act giving rise to the charge. Nevertheless, the Council was of the view that the provisions in force were not inconsistent with Norway’s obligations under Article 6 § 2 of the Convention, as interpreted by the Court in its case-law (see Norges Offentlige Utredninger (Norwegian Official Reports), “Erstatning i anledning straffeforfølgning” (“Compensation in connection with criminal proceedings”), 1996:18, pp. 20-22, 36, 52). On 15 May 2002 a government bill was presented to Parliament (Ot.prp.nr.77, 2001-2002), proposing, inter alia, the repeal of that condition.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-2


ITEMID: 001-87959
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: FOSTER v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicant, Mr Gary Foster, is a British national who was born in 1961 and lives in Stockport. He was represented before the Court Ms S. R. Baker, Social Work Department, Stockport. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant’s wife died on 8 January 1999 leaving two children born in 1989 and 1992. His claim for widows’ benefits was made on 2 February 1999 and was rejected on 2 March 1999, on the ground that he was not entitled to widows’ benefits because he was not a woman. This decision was confirmed by an appeal tribunal on 1 March 2001. The applicant did not appeal as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under United Kingdom law.
The domestic law relevant to this application is set out in Willis v. the United Kingdom, no. 36042/97, §§ 14-26, ECHR 2002-IV and Runkee and White v. the United Kingdom nos. 42949/98 and 53134/99, 25 July 2007.


ITEMID: 001-83019
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: KNEIPP v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Peer Lorenzen
TEXT: The applicant, Ms Petra Kneipp, is a German national who was born in 1970 and lives in Reichelsheim in Germany. She was represented before the Court by Mr R. Eschstruth, a lawyer practising in Bad Wildungen.
The applicant is the mother of a son born out of wedlock on 10 July 2000. The applicant, who had full parental authority, raised the child until the age of one. Subsequently, the child was placed in the care of foster parents.
On 25 June 2002 the Büdingen District Court (Amtsgericht) withdrew the applicant’s parental authority over her son and transferred it to the District Youth Office. Following expert opinion, that court considered that the applicant was permanently unable adequately to raise her child as she suffered from borderline-syndrome or a comparably serious personality disorder.
Since October 2002 the child lives with the foster parents Mr and Mrs L., who have special pedagogical training.
The applicant, represented by counsel, lodged a request with the Büdingen District Court to be granted weekly access rights to her son.
On 29 November 2002 the District Court, following an oral hearing, granted the applicant monthly visits of a duration of one hour and a half within the premises of a social institution and in the presence of a staff member of that institution.
On the basis of the expert opinion submitted in the custody proceedings and of the result of the oral hearing, that court considered that the applicant was permanently unable to take care of the child and that the child was to remain permanently with the foster family. It was presently of eminent importance that the child formed bonds with the foster parents which came close to those existing between parents and their natural children. An extension of access rights would seriously disturb the formation of such bonds and would be contrary to the child’s best interests.
On 20 December 2002 the applicant lodged a complaint with the Frankfurt Court of Appeal (Oberlandesgericht) with the aim of being granted more extensive access rights. She argued that the monthly access rights were not sufficient to maintain the parental relationship to her son. Conversely, the foster parents opposed further access rights on the grounds that the child was very much disturbed following contacts with the applicant and that they could not cope with further visiting contacts having regard to the problems which were likely to arise.
The Court of Appeal held three hearings in the presence of the applicant, the foster parents and a representative of the social institution supervising the exercise of access rights.
On 11 December 2003 the Court of Appeal ordered the preparation of an expert opinion as to which extent of access rights were in the child’s best interests.
On 26 May 2004 the psychological experts submitted their expert opinion. Having examined the applicant and attended one meeting between the applicant and her son, they considered that the applicant’s psychological disorders had been confirmed by their examination. According to the experts, the applicant displayed erratic behaviour and lacked, in particular, the capability adequately to react on a social and emotional level. There was no evidence of an emotional bond between the applicant and her son. The child did not seem to feel at ease with his mother and was relieved to return to his foster parents.
Having regard to the applicant’s psychological disorder, the experts considered that intensive contacts with his mother would jeopardise the child’s development. More frequent visiting contacts would disturb and destabilise the child. Conversely, it was presently important for the child to build a stable relationship to his foster parents.
It followed that the present regulations on access rights best served the child’s interests. Having regard to the child’s further development, an extension of access rights could be envisaged in the future.
On 21 December 2004 the Frankfurt Court of Appeal rejected the applicant’s appeal. Referring to the written expert opinion and the statement given by one of the experts during the oral hearing, the Court of Appeal considered that an extension of access rights was not completely excluded, but should not be envisaged before the child had reached the age of six to nine years. Following the expert recommendations, the Court of Appeal considered that the child was too young to cope with the applicant’s rapid mood swings, which also became apparent during the court hearing, and her inability adequately to respond to her social counterpart. This did not mean that the present access rights had to be further restricted. While the meetings between the applicant and the child could be described as harmonious during the allotted hour and a half, the child was content to say good-bye after the visits and looked forward to see his foster parents. As had been confirmed during the oral hearing, the applicant was much better able to concentrate during the first hour and a half. Under these circumstances, it was understandable that the visiting contacts took place in a harmonious way within the given time-frame, while further contacts would presently not be favourable to the child’s development.
On 14 October 2005 the Federal Constitutional Court, sitting as a panel of three judges, refused to admit the applicant’s constitutional complaint for adjudication. This decision was served on the applicant’s counsel on 26 October 2005.
According to section 1684 of the Civil Code, a child is entitled to have access to his or her parents; each parent is obliged to have contact with, and entitled to have access to, the child. The family courts can, however, restrict or suspend that right if such a measure is necessary for the child’s welfare.
A decision restricting or suspending that right for a lengthy period or permanently may only be taken if otherwise the child’s well-being would be jeopardised (section 1684 § 4).


ITEMID: 001-60898
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF PECK v. THE UNITED KINGDOM
IMPORTANCE: 1
CONCLUSION: Violation of Art. 8;Violation of Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: Matti Pellonpää;Nicolas Bratza
TEXT: 8. The applicant was born in 1955 and lives in Essex.
9. In February 1994 Brentwood Borough Council (“the Council”) approved guidelines for the operation and management of CCTV. The CCTV tape recordings would be retained initially for ninety days, this period to be reviewed from time to time and reduced to a minimum, and the tapes would be erased on completion of the storage period. In the section headed “privacy to neighbouring properties”, it was noted that the CCTV system should ensure adequate provision for the avoidance of unwarranted intrusion in areas surrounding those under surveillance. In the event of it becoming apparent that privacy was being violated, it was foreseen that the Council would take such steps as to ensure that “either an electronic (digital) screening or physical screening is taking place”. In April 1994 the Council installed a CCTV surveillance system in Brentwood. It was fully operational by July 1994. The Council's monitoring operator had a direct visual and audio link to the police so that if it was considered that an incident warranting police intervention was taking place, the images being captured could be switched through to the police.
10. In August 1995 the applicant was suffering from depression as a result of personal and family circumstances. On 20 August 1995 at 11.30 p.m. he walked alone down the high street towards a central junction in the centre of Brentwood with a kitchen knife in his hand and he attempted to commit suicide by cutting his wrists. He stopped at the junction and leaned over a railing facing the traffic with the knife in his hand. He was unaware that a CCTV camera, mounted on the traffic island in front of the junction, filmed his movements. The CCTV footage later disclosed did not show the applicant cutting his wrists, the operator being solely alerted to an individual in possession of a knife at the junction.
11. The police were notified by the CCTV operator and arrived. They took the knife from the applicant, gave him medical assistance and brought him to the police station. He was detained under the Mental Health Act 1983. His custody record refers to the self-inflicted injuries to his wrists on arrival and notes that he was examined and treated by a doctor, after which he was released without charge and taken home by police officers.
12. On 14 September 1995 the CCTV working party of the Council agreed to authorise the release of regular press features on the CCTV system. The Council also decided to cooperate with third parties in the preparation of factual programmes concerning their CCTV system.
13. The Council's first press feature, the CCTV News, was released on 9 October 1995 and included two photographs taken from the CCTV footage of the applicant to accompany an article entitled “Defused – The partnership between CCTV and the police prevents a potentially dangerous situation”. The applicant's face was not specifically masked. The article noted that an individual had been spotted with a knife in his hand, that he was clearly unhappy but not looking for trouble, that the police had been alerted, that the individual had been disarmed and brought to the police station where he was questioned and given assistance for his problems. The article included the name of a Council employee in the event that readers wished to obtain copies of the pictures.
14. On 12 October 1995 the Brentwood Weekly News used a photograph of the incident involving the applicant on its front page to accompany an article on the use and benefits of the CCTV system. The applicant's face was not specifically masked.
15. On 13 October 1995 an article entitled “Gotcha” appeared in the Yellow Advertiser, a local newspaper with a circulation of approximately 24,000. The article was accompanied by a photograph of the applicant taken from the CCTV footage. The newspaper article referred to the applicant having been intercepted with a knife and a potentially dangerous situation being defused as a result of the CCTV system. It was noted that the applicant had been released without charge.
16. As a result Anglia Television sought, and the Council provided, footage of the incident involving the applicant. On 17 October 1995 extracts from that footage were included in its news programme about the CCTV system, a local broadcast to an average audience of 350,000. The applicant's face had been masked at the Council's oral request. However, that masking was later considered inadequate by the Independent Television Commission (see below), the applicant's distinctive hairstyle and moustache making him easily recognisable to anyone who knew him.
17. On 18 October 1995 the Chairman of the Council informed the Council Technical Services Committee that cooperation had been, and would continue to be, given in the preparation of factual documentary programmes concerning the CCTV system. He referred to the feature on CCTV which had been broadcast by Anglia Television on the previous day.
18. In late October or November 1995 the applicant became aware that he had been filmed on CCTV and that footage had been released because a neighbour told his partner that the former had seen him on television. He did not take any action then as he was still suffering from severe depression.
19. On 16 February 1996 a second article entitled “Eyes in the sky triumph” was published in the Yellow Advertiser outlining the benefits of CCTV in the fight against crime and was accompanied by the same photograph as had been previously used by that newspaper. It appears that a number of people recognised the applicant. A letter of 25 April 1996 from the Yellow Advertiser opined that the applicant was not identifiable. The Press Complaints Commission did not decide whether or not the applicant was identifiable from the photograph (see below).
20. At or about that time the Council agreed to furnish CCTV footage of, inter alios, the applicant to the producers of “Crime Beat”, a series on BBC national television with an average of 9.2 million viewers. The Council imposed orally a number of conditions on the producers including that no one should be identifiable in the footage and that all faces should be masked. The BBC were also to consult with the police to ensure that they had “no objection to recordings being shown because of sub judice issues”.
21. Around 9 to 11 March 1996 the applicant was told by friends that they had seen him on 9 March 1996 in trailers for an episode of “Crime Beat” which was to be broadcast soon. On 11 March 1996 he complained to the Council about the forthcoming programme, at which stage the Council became aware of his identity. The Council contacted the producers who confirmed that his image had been masked. That evening the CCTV footage was shown on “Crime Beat”. The applicant's image was masked in the main programme itself but the Broadcasting Standards Commission (see below) later found that masking inadequate. Many of the applicant's friends and family who saw the programme recognised the applicant.
22. In response to the applicant's request for a copy of the Council's licence agreement with the producers of “Crime Beat”, by letter dated 21 February 1997, the Council provided an unsigned and undated agreement which did not appear to relate to the applicant but which contained a requirement to mask all faces in any copies of the relevant video. By letter dated 31 October 1997 the Council confirmed that it could not locate a signed copy of the agreement with the producers but it included an earlier draft of that agreement which had been signed by the producers, which related to the footage of the applicant but which did not include any masking requirement.
23. The applicant made a number of media appearances thereafter to speak out against the publication of the footage and photographs. On 28 March 1996 he participated in a national radio programme (BBC Radio 4). On 31 March 1996 he spoke to a journalist who published an article in a national newspaper and this was the first time the applicant's name appeared in the media. Other newspaper articles included photographs of the applicant or quotes given by him. He also appeared on national television: on 13 April 1996 on Channel 4's “Right to Reply”, on 25 July 1996 on Channel 5's “Espresso” and on 5 August 1997 on BBC 1's “You Decide”. He also had his photograph published in the Yellow Advertiser on 25 October 1996.
24. On 25 April 1996 the applicant lodged a complaint with the BSC in relation to, inter alia, the “Crime Beat” programme alleging an unwarranted infringement of his privacy and that he had received unjust and unfair treatment. On 13 June 1997 the BSC upheld both of his complaints.
25. The BSC noted that the BBC had already accepted that it had meant to mask the applicant's image and that this had not been done in the trailer due to an oversight. The BSC also considered the masking during the programme inadequate as the applicant had been recognised by viewers who had not seen the trailer. It was accepted that the BBC had not intended that the applicant would be identifiable. However, the BSC found that the effect was to reveal to the applicant's family, friends and neighbours an episode which he did not wish to reveal, and that the outcome had been distressing and amounted to an unwarranted infringement of his privacy. The BSC added that the fact that the applicant later chose to speak publicly about this incident did not alter the infringement established. The BBC was directed to broadcast a summary of the adjudication of the BSC with the episode of “Crime Beat” on 12 June 1997 and a summary of the adjudication was also published in The Daily Telegraph on 12 June 1997.
26. On 1 May 1996 the applicant complained to the ITC in respect of the broadcast by Anglia Television. The latter had already apologised to the applicant and conceded that it had breached the privacy requirements of section 2(2) and (5) of the ITC Code (sections concerning coverage of events in public and scenes of suffering and distress). The ITC noted that the implication was that a man carrying a knife was likely to be intent on a criminal act. It found that the applicant's identity was not adequately obscured and that he was readily identifiable and easily recognisable by those who knew him. It found that section 2(2) and (5) of the Code had been breached and the decision of the ITC was published in its Programme Complaints and Interventions Report of June 1996. Given the admission and apology by Anglia Television, no further action was taken by the ITC.
27. On 17 May 1996 the applicant complained to the PCC in respect of the articles published in the Yellow Advertiser. The PCC rejected the applicant's complaint without a hearing and the decision was communicated to the applicant by letter dated 2 August 1996. The PCC considered that, whether or not the applicant was identifiable from the photographs, the events in question took place in a town high street, open to public view. It did not consider that the juxtaposition of the photographs and the articles implied that the applicant had committed a crime and it had been made clear that he was released without charge, the second article indicating that the applicant was ill at the relevant time.
28. On 23 May 1996 the applicant applied to the High Court for leave to apply for judicial review of the Council's disclosure of the CCTV material arguing, inter alia, that that disclosure had no basis in law. On 26 June 1996 a single judge of the High Court refused leave. On 18 October 1996 the High Court granted leave on a renewed request and leave to amend the application to include a complaint that the disclosure was irrational, even if lawful.
29. By judgment dated 25 November 1997 the High Court rejected the application for judicial review. It found that the purpose of section 163 of the Criminal Justice and Public Order Act 1994 (“the 1994 Act”) was to empower a local authority to provide CCTV equipment in order to promote the prevention of crime or the welfare of victims of crime:
“By publicising information about the successful operation of the CCTV, the Council was providing information about its effectiveness and thereby reinforcing the deterrent effect of its operation. The making available to the media of footage from the CCTV film to show the effectiveness of the system can properly be said ... to be incidental to and to facilitate the discharge of the Council's function under section 163 [of the 1994 Act] because it thereby increased, or tended to increase, the preventative effect of the equipment which [the Council was] providing for the purposes of the prevention of crime.”
30. It concluded that the Council had the power to distribute the CCTV footage to the media by virtue of section 111 of the Local Government Act 1972 in the discharge of their functions under section 163 of the 1994 Act.
31. As to the “rationality” of the Council's decision to disclose, the applicant submitted that the Council acted irrationally in disclosing the footage with the aim of crime prevention when he had not been, in fact, involved in any criminal activity. He argued that by failing to consult the police to see if he had been charged with a criminal offence and to impose sufficient restrictions as regards disclosure of his identity, the Council had facilitated an unwarranted invasion of his privacy which was contrary to the spirit, if not the letter, of the Council's guidelines.
32. The High Court judge had some sympathy with that submission but did not consider it correct in law. He went on:
“I have some sympathy with the applicant who has suffered an invasion of his privacy, as is borne out by the findings of the Independent Television Commission and the Broadcasting Standards Commission. However, if I am right in deciding that the Council does have power to distribute the film footage from its CCTV system, there may on occasion be undesirable invasions of privacy. Unless and until there is a general right of privacy recognised by English law (and the indications are that there may soon be so by incorporation of the European Convention on Human Rights into our law), reliance must be placed on effective guidance being issued by Codes of practice or otherwise, in order to try and avoid such undesirable invasions of a person's privacy.
The evidence is that the CCTV cameras in public places play an important role in both crime prevention and crime detection. In this case, the film footage showed a man walking in the High Street carrying a large knife in his hand. It did not show him attempting to commit suicide. It was plainly a potentially dangerous situation which the Council's monitoring employee quite properly put to the police, as a result of which the man was arrested. ... It was not unreasonable for the Council to conclude that the footage was a useful example of how a potentially dangerous situation can be avoided. ... In those circumstances, it seems to me that the decision of the Council to distribute the film footage to the media could not be said to be irrational or unreasonable, bearing in mind that the film did not show an attempted suicide and that, at the time, they did not know the applicant's identity. They therefore had no reason to consult the police as to whether an offence had been committed. They did not sell the take-outs from the CCTV footage for commercial gain and, more importantly, they had imposed on the television companies a requirement that an individual's face should be masked. It is true that that was a verbal rather than a written requirement, but I am not persuaded that what happened was likely to have been different if it had been a written requirement. In the event, the fault lay with the television companies. Anglia TV failed to mask the applicant's identity adequately. The BBC failed to mask the applicant's identity at all in the trailers. As soon as the Council were notified about that by the applicant, two days before the programme went out, which was the first time they were aware of the applicant's identity, they immediately contacted the BBC and received assurances that his image had been masked in the programme. In the event, unknown to the Council, it had not been adequately masked in the programme.
I am sure that lessons can be learnt from this unfortunate incident, and it may be that, with the benefit of hindsight, the Council will want to see if they can tighten up their guidelines to seek to avoid a similar incident in the future. I am, however, equally sure that, in the circumstances that I have described, the Council cannot be said to have acted irrationally in the sense that they had taken leave of their senses or had acted in a manner in which no reasonable local authority could sensibly have acted.”
33. An application to the High Court for leave to appeal to the Court of Appeal was rejected. The subsequent leave application to a single judge of the Court of Appeal was rejected on 21 January 1998 because
“... the [High Court] Judge was plainly correct in his interpretation of the relevant statutory provisions and the Council was neither acting outside its statutory authority nor irrationally in making the film and photographs available to the media. The injury, of which complaint is made, arises from a failure on the part of the media to sufficiently disguise the applicant when making the film and photographs visible to the public. That is and has been the subject of complaint against the media involved but is not capable of supporting a claim for a declaration against Brentwood Borough Council”.
34. Following an oral hearing before the full Court of Appeal, the applicant's leave application was dismissed on 19 February 1998.
35. The Criminal Justice and Public Order Act 1994 (“the 1994 Act”) came into force on 3 February 1995. The relevant parts of section 163 provide as follows:
“1. Without prejudice to any power which they may appear to exercise for those purposes under any other enactment, a local authority may take such of the following steps as they consider will, in relation to their area, promote the prevention of crime or the welfare of the victims of crime –
(a) providing apparatus for recording visual images of events occurring on any land in their area;
(b) providing within their area a telecommunications system which, under Part II of the Telecommunications Act 1984, may be run without a licence;
(c) arranging for the provision of any other description of telecommunications system within their area or between any land in their area and any building occupied by a public authority.
2. Any power to provide, or to arrange for the provision of, any apparatus includes power to maintain, or operate, or, as the case may be, to arrange for the maintenance or operation of, that apparatus.”
36. The relevant part of section 111(1) of the Local Government Act 1972 provides as follows:
“Without prejudice to any powers exercisable apart from this section but subject to the provisions of this Act and any other enactment passed before or after this Act, a local authority shall have the power to do anything ... which is calculated to facilitate, or is conducive or incidental to the discharge of any of their functions.”
37. Essex Police Policy Guidelines dated June 1995 concern the involvement of the police in the installation and operation of CCTV systems in their remit. In the section concerning the release to the media of video footage, it was pointed out that care should be taken not to jeopardise any existing or future legal proceedings, that licence agreements covering all appropriate terms and conditions of release should be drawn up and that care should always be taken to ensure that victims or other innocent parties featured were aware of its potential use and, where possible, their consent obtained. Where possible, the identity of victims, police employees and suspects (where identification might jeopardise criminal proceedings) should be masked.
38. As an extension of the Crime Reduction Programme announced in July 1998, government funding for CCTV systems was introduced in March 1999 and the sum of 153 million pounds sterling (GBP) has been made available over a period of three years, of which over GBP 40 million has already been allocated to more than 200 CCTV schemes. One of the requirements of such funding is that the scheme should be regulated by a suitable code of practice to ensure that it operates fairly and with proper respect for personal privacy. In the first year of operation of the CCTV system in Brentwood, there was a 34% reduction in crime.
39. Where a public authority has exceeded its powers or has acted irrationally or has reached a decision in breach of the rules of procedural fairness, then a person aggrieved may challenge the decision by means of a judicial review. If a decision is so disproportionate to its intended objective as to be irrational, the Court will strike it down. The English courts do not recognise proportionality as a separate head of judicial review. However, in the case of R. (Alconbury Developments Ltd) v. Secretary of State for the Environment, Transport & the Regions ([2001] 2 Weekly Law Reports 1389), Lord Slynn of the House of Lords stated obiter dictum:
“I consider that even without reference to the Human Rights Act 1998 the time has come to recognise that this principle [of proportionality] is part of English administrative law, not only when judges are dealing with Community acts but also when they are dealing with acts subject to domestic law.”
40. The remedy of breach of confidence is made up of three essential elements: the information itself must have “the necessary quality of confidence about it”; the information “must have been imparted in circumstances importing an obligation of confidence”; and there must have been an “unauthorised use of that information to the detriment of the party communicating it” (Coco v. A.N. Clark Engineers Ltd [1969] Reports of Patent Cases 41, at p. 47). A fuller description of this cause of action together with more recent domestic case-law are detailed in Earl and Countess Spencer v. the United Kingdom (applications nos. 28851/95 and 28852/95, Commission decision of 16 January 1998, Decisions and Reports (DR) 92A, p. 56).
41. Where a public official abuses his position by performing an administrative act maliciously, or which he knows he has no power to do, and causes foreseeable harm, then the injured person may recover damages on the basis of misfeasance in public office.
42. The remedy of defamation is well established in English law. Every person is entitled to his good name and to the esteem in which he is held by others and has a right to claim that his reputation shall not be disparaged by defamatory statements made about him to a third person or persons without lawful justification or excuse.
43. The essential elements of malicious falsehood are that a defendant has published words about the claimant that are false, that they were published maliciously and that special damage has followed as a direct and natural result of their publication (Kaye v. Robertson [1991] Fleet Street Reports 62).
44. The tort of nuisance consists of an unwarranted interference with the use or enjoyment of land (see, for example, Thomas v. National Union of Mineworkers [1986] Law Reports: Chancery Division 20). Trespass consists of an unjustifiable intrusion by one person upon the land in the possession of another. The domestic courts have been developing the concept of a tort of harassment causing personal injury (see, for example, Burnett v. George [1992] 1 Family Law Reports 525, and Khorasandjin v. Bush [1993] 3 All England Law Reports 669).
45. Depending on the circumstances in which any film has been made or published, the unauthorised taking or publication of pictures might be prevented (or damages recovered) on the grounds of copyright, breach of contract or inducing breach of contract.
46. Statute law provides certain protection in the form of the Protection from Harassment Act 1997. Statutory regulation of surveillance is provided by the Interception of Communications Act 1985, by the Intelligence Services Act 1994 and by the Police Act 1997. The purpose of the Regulation of Investigatory Powers Act 2000 is to ensure that the relevant investigatory powers of the authorities are used in accordance with human rights. Many users of CCTV will have to comply with the provisions of the Data Protection Act 1998. Specific statutory protection of privacy is accorded in certain other contexts such as the anonymity of rape victims (Sexual Offences (Amendment) Act 1976) and the prohibition of the publication of the names or photographs of children involved in legal proceedings (Children and Young Persons Act 1933).
47. The Human Rights Act 1998 came into force in October 2000. It requires that, so far as it is possible to do so, primary and subordinate legislation be read and given effect in a manner compatible with the European Convention on Human Rights and further provides that it is unlawful for a public authority to act in a way incompatible with a Convention right.
In Douglas v. Hello! Ltd ([2001] 1Weekly Law Reports 992), Sedley LJ indicated that he was prepared to find that there was now a qualified right to privacy under English domestic law, although other members of the Court of Appeal (Brooke LJ and Keene LJ) did not find it necessary to rule on that point.
48. The Broadcasting Standards Commission (BSC) was established by section 106 of the Broadcasting Act 1996 with effect from April 1997. It is the duty of the BSC to draw up and publish a code giving guidance as to the principles to be observed and practices to be followed in connection with the avoidance of unjust or unfair treatment in programmes or the unwarranted infringement of privacy in programmes (section 107 of the 1996 Act). In this respect, paragraph 16 of the code points out that broadcasters should take care with material recorded by CCTV cameras to ensure identifiable individuals are treated fairly and that “any exceptions to the requirement of individual consent would have to be justified by an overriding public interest”. The BSC is also required to consider and adjudicate on complaints relating to unjust or unfair treatment in programmes, or to unwarranted infringement of privacy in programmes (sections 110 and 111 of the 1996 Act).
49. The BSC has powers, inter alia, to direct broadcasting bodies to publish the findings of the BSC or a summary of them (section 119), but it has no powers to direct a broadcasting body not to broadcast a programme.
50. The Independent Television Commission (ITC) is a public body set up by the Broadcasting Act 1990 to licence and regulate commercially funded television (excluding television services provided by, inter alia, the BBC). The Act requires the ITC to draw up and enforce a code governing programming standards and practice, which code covers issues of privacy. The ITC adjudicates upon complaints made under the code and, where a breach is confirmed, the ITC may impose sanctions such as requiring on-screen apologies, ordering fines and revoking licences.
51. The Press Complaints Commission (PCC) is a non-statutory body set up by the newspaper industry for the purposes of self-regulation. The PCC operates a voluntary code of practice, which code includes provisions relating to privacy. If a newspaper is found to be in breach of the code, the newspaper is to publish the adjudication of the PCC. The PCC has no legal powers to prevent publication of material, to enforce its rulings or to grant any legal remedies to a complainant.
VIOLATED_ARTICLES: 13
8


ITEMID: 001-98205
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: KIMESWENGER v. AUSTRIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: The applicant, Mr Peter Kimeswenger, is an Austrian national who was born in 1968 and lives in Attnang-Puchheim. He was represented before the Court by Gabl, Kogler, Papesch and Leitner, a firm of lawyers practising in Linz. The Austrian Government (“the Government”) were represented by their Agent, Ambassador F. Trauttmansdorff, Head of the International Law Department at the Federal Ministry of Foreign Affairs.
On 30 September 1996, preliminary investigations (Vorerhebungen) were instituted against the applicant and ten other persons who were suspected of aggravated fraud, breach of trust, money laundering and forming a criminal organisation.
During these proceedings the Wels Regional Court (Landesgericht) acting through its competent investigating judge, on 16 September 1997 confiscated three cars belonging to the applicant by an interim measure under section 144a of the Code of Criminal Procedure (Strafprozess-ordnung) in order to secure the levy (Abschöpfung) of property presumed to have been obtained by criminal acts. The court confiscated a Suzuki Kombi, a Chrysler Voyager Kombi and a Mercedes Cabrio. On 12 March 1998 the court further ordered that the cars be kept at a motor trading company in Gallspach. It dismissed the applicant’s argument that his friend and not he was the owner of the Suzuki Kombi.
The applicant did not appeal against this decision.
On 21 December 2004 the Wels Regional Court convicted the applicant of aggravated professional fraud and being a member of a criminal organisation. Under Article 20 of the Criminal Code (Strafgesetzbuch) it found that there should be a levy on the enrichment obtained from the crimes in the amount of 5,220.36 euros (EUR). The applicant made a plea of nullity to the Supreme Court. The applicant and the Public Prosecutor also filed appeals against the sentence.
On 23 February 2005 the court, referring inter alia to section 401 of the Enforcement Act (Exekutionsordnung), ordered that the cars be sold at public judicial auction. It noted that the criminal proceedings were very complex and that the Supreme Court would presumably not render judgment until 2006. The sale of the cars was necessary in order to prevent excessive parking charges and loss of value due to the cars’ decreasing sales value. The court finally noted that the interests of the car owner were protected by the fact that he could recover the cars by participating in the judicial auction. Furthermore, he would obtain the proceeds of the sale revenue if no levy would be imposed. The decision was served on the applicant’s counsel on 18 March 2005. No formal remedy lies against this decision.
Nevertheless, the applicant, assisted by counsel, lodged an appeal on 30 March 2005. He submitted that the reasons given for the sale were not plausible, as the cars had until now been kept for some seven and a half years, and considerable parking charges had accrued. Therefore, the fact that the cars should be kept for some further nine months was of minor importance. He was not in a position to buy the cars at the judicial auction as he was currently living on emergency assistance (Notstandshilfe). Furthermore, there was not sufficient legal basis for the court’s decision to sell his property. The applicant finally argued that he was not the owner of the Suzuki Kombi and that the court had failed to inform the real owner.
On 30 May 2005 the Linz Court of Appeal (Oberlandesgericht) rejected the appeal as inadmissible, as no appeal lay against such an order. It noted that the provisions of the Code of Criminal Procedure alone were relevant and section 144a § 6 of the Code of Criminal Procedure only provided for the right to appeal against a decision ordering or cancelling an interim confiscation. This decision was served on the applicant’s counsel on 27 June 2005.
On 16 August 2005 the cars were sold at a public auction.
On 1 April 2008 the Supreme Court dismissed the applicant’s plea of nullity against the Regional Court’s judgment of 21 December 2004 and, on 29 May 2008, the Linz Court of Appeal dismissed the appeals lodged by the applicant and the Public Prosecutor.
Under Article 20 § 1 of the Criminal Code (Strafgesetzbuch) a person who has obtained property of value by or as a result of criminal acts should be sentenced to a fine in the amount of the unlawful enrichment. If the exact extent of the enrichment cannot be established or can only be established by incurring disproportionate costs, the court has to assess the amount to be levied on an equitable basis.
In case of suspicion of unlawful enrichment, presumably falling under the scope of Article 20 of the Criminal Code, and if there is reason to assume that otherwise the levy on the value of the property concerned is thereby placed at risk, section 144a § 1 of the Code of Criminal Procedure (Strafprozessrecht) authorises the investigating judge, at the request of the Public Prosecutor’s Office, to issue an interim order of confiscation.
Section 144a § 1 further provides that, if not stipulated otherwise, the provisions of the Enforcement Act (Exekutionsordnung) apply to these interim measures.
Section 144a § 6 provides that the Public Prosecutor’s Office, the accused and any other person concerned have the right to appeal to the second-instance court against a decision ordering or cancelling an interim confiscation.
Section 401 § 1 of the Enforcement Act provides that, upon request, the court may issue any orders which are necessary to prevent obsolescence, disproportional costs or other losses concerning objects which belong to third parties and have been taken into legal custody. According to the legal doctrine, such a decision may also consist in the order to sell the objects concerned.


ITEMID: 001-91927
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF PŁONKA v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
TEXT: 5. The applicant was born in 1949 and lives in Sosnowiec, Poland.
6. On 8 April 1999 the applicant was arrested on suspicion of homicide. She was first interviewed by a police officer. On 9 April 1999 she was charged with murdering E.L on 8 April 1999. On 9 and 10 April 1999 she was questioned by the Sosnowiec District Prosecutor. During the questioning she stated that she had been having alcohol problems for the last 20 years. She and E.L., a former work colleague, used to drink together. On 7 April 1999 they had drunk more than half a litre of vodka and some wine. She also stated that she did not remember much of what had happened. She further confessed to killing E.L. Nevertheless, she stressed that she had not meant to kill the victim, but he had made her very angry and she had stabbed him with scissors.
7. During the arrest and subsequent questioning by the police and the prosecution authorities the applicant was not assisted by a lawyer. On 9 April 1999 the applicant signed the relevant form acknowledging that she had been informed of her rights, including the right to be assisted by a lawyer and the right to refuse to testify.
8. On 19 April 1999 the prosecutor ordered an expert report on the applicant’s mental health at the time when the crime of which she was suspected was committed. The report was submitted on 26 April 1999. The applicant was considered to be criminally responsible.
9. On 21 April 1999 the applicant asked to be released from detention. The District Prosecutor refused her motion on 11 May 1999. This decision was upheld by the Regional Prosecutor on 7 June 1999.
10. On 23 April 1999 the Regional Court appointed a legal-aid-lawyer for the applicant. On 5 May 1999 the applicant appointed a lawyer of her own choice.
11. On 28 June 1999 the Sosnowiec District Prosecutor filed a bill of indictment with the Katowice Regional Court (Sąd Okręgowy). The applicant was indicted on charges of murder.
12. Throughout the trial the applicant maintained that she suffered from alcoholism. She retracted her confession made during police custody, alleging that she had been questioned under duress and forced by the police officers to make self-incriminating statements.
13. On 30 June 1999 the Katowice Regional Court, having regard to the fact that the applicant was represented by a lawyer of her own choice, decided to withdraw the services of the legal-aid lawyer.
14. The trial ended on 24 February 2000. The applicant was convicted as charged and sentenced to 11 years’ imprisonment. The court considered that the applicant’s testimony during the trial had not been credible and had merely been her line of defence. The conviction was based on the applicant’s statements made during the initial phase of the investigation and on evidence given by several witnesses.
15. On 11 April 2000 the applicant’s lawyer filed an appeal against the judgment. He stressed, in particular, that there had been a violation of the applicant’s right to defend herself in view of the deficiencies in the preliminary investigation.
16. On 25 May 2000 the Katowice Court of Appeal (Sąd Apelacyjny) upheld the firstinstance judgment. The court held that the applicant’s right to defend herself had not been infringed. It pointed out that as of 23 April 1999 she had been assisted by a lawyer – first an officially appointed lawyer, then a lawyer of her own choice.
17. On 19 July 2000 the applicant’s lawyer filed a cassation appeal with the Supreme Court (Sąd Najwyższy). He maintained that there had been a violation of Article 6 § 3 (c) of the Convention in that the applicant had not been assisted by a lawyer at the preliminary stage of the investigation. He relied on the caselaw of the European Court of Human Rights.
18. On 26 January 2001 the Supreme Court dismissed the applicant’s cassation appeal. That decision did not contain any reasons.
19. Pursuant to Article 78 § 1 of the 1998 Code of Criminal Procedure, an accused who had proved that he or she could not afford legal assistance (i.e. that the costs of such assistance “would entail a substantial reduction in his and his family’s standard of living”) could ask the trial court to appoint him a defence counsel.
20. Article 80 of the Code lays down the principle known as “compulsory assistance of an advocate” (przymus adwokacki). That Article provides, in so far as relevant:
“An accused must have an officially appointed lawyer when a Regional Court is competent to deal with his case as a court of first instance, a crime is involved within the meaning of the Criminal Code, or the individual is remanded in custody. The counsel must take part in the main hearing; he must also take part in any appellate hearing if the president of the court or the court itself has found this necessary.”
This provision does not apply to the investigative stage of the proceedings but only after the case is sent for trial, as was expressly confirmed by the Supreme Court in its resolution of 20 January 2004 (III KK 226/03).
VIOLATED_ARTICLES: 6


ITEMID: 001-122662
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: ADMISSIBILITY
DATE: 2013
DOCNAME: KAJTAZOVIĆ v. SLOVENIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Aleš Pejchal;Angelika Nußberger;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger
TEXT: The applicant, Mr Zlatko Kajtazović, is a Slovenian national, who was born in 1964 and lives in Ljubljana. He is represented before the Court by Odvetniška Družba Matoz D.O.O., a law firm practising in Koper.
The Slovenian Government (“the Government”) are represented by their Agent, Mr L. Bembič, State Attorney.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant has been serving a sentence in the closed section of Dob Prison since 5 December 2008.
As regards the facilities available to the applicant in the cells and common areas, as well as the health care regime in the prison, the conditions imposed on the applicant regarding activities outside the cells and contact with the outside world in general, see the Court’s decision in the case of Lalić and Others v. Slovenia (dec.), nos. 5711/10, 5719/10, 5754/10, 5803/10, 5956/10, 5958/10, 5987/10, 6091/10, 6647/10 and 6893/10, 27 September 2011.
Since 12 December 2008 the applicant has been held in a cell no 1, Block 3 which measured 59.89 square metres and held fifteen inmates (3.99 square metres of personal space available to each inmate).
According to the Government’s submissions dated 22 December 2010 the prison governor adopts a fire safety guide as required by the Fire Protection Act and in 2005 and 2010 two fire safety guides were adopted. The Government submitted inter alia that the prison has provided hand-held extinguishers and that there has been a system of separate water mains with hydrants for fighting fires. In 2005 and 2010 two inspections were also carried out. In 2005 prison authorities were asked by the Inspectorate of the Republic of Slovenia for Protection Against Natural and Other Disasters to enable adequate water supply for the purpose of fighting fires and the prison later informed the Inspectorate that the deficiency has been rectified. During an inspection in 2010 the Inspectorate found that the prison did not have a fire protection or evacuation plan. Despite that, the Inspectorate found this to be only a minor offence, as both plans were being prepared at the time of the inspection and would be finished in few months. Further, according to the Government’s submissions the evacuation paths have been marked in prison already before the 2010 inspection and the prison has been ensuring fire safety through the respect of fire legislation, through regular inspection of fire extinguishers and water mains with hydrants, through training of the staff, through measuring and repairing lightning conductors etc.
For the relevant domestic law and practice, see paragraphs 33-35 and 38-47 of the Court’s judgment in the case of Štrucl and Others v. Slovenia (nos. 5903/10, 6003/10 and 6544/10, 27 September 2011), and paragraphs 34-36 of Mandić and Jović v. Slovenia (nos. 5774/10 and 5985/10, 27 September 2011), Lalić and Others, cited above, as well as Mešić v. Slovenia (no. 5767/10, 22 November 2011) and Ferenc v. Slovenia (no. 6682/10, 13 March 2012).


ITEMID: 001-91474
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: IVAN AND MARTIN MEDIC v. CROATIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: The applicants, Mr Ivan Medić and Mr Martin Medić, are Croatian nationals who were born in 1934 and 1974 respectively and live in Kaštel. They are represented before the Court by Mr M. Budimir, a lawyer practising in Split. The Croatian Government (“the Government”) are represented by their Agent, Mrs Š. Stažnik.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 14 November 1994 the applicants brought a civil action against an insurance company in the Split Municipal Court (Općinski sud u Splitu), seeking damages in connection with a road accident.
In the period before the entry into force of the Convention in respect of Croatia (5 November 1997), a judgment was twice adopted and both times quashed by the appellate court. The case was transferred to the Kaštel Lukšić Municipal Court (Općinski sud u Kaštel Lukšiću).
Further hearings before the court of first instance were held on 13 October and 8 December 1999, and 28 January, 28 April, 19 May and 22 September 2000, when a fresh judgment was adopted. However, on 7 June 2002 the judgment was quashed by the Split County Court (Županijski sud u Splitu) and the case was remitted to the court of first instance.
Hearings were held on 27 September 2002 and 19 March, 24 September, 14 and 28 October and 28 November 2003, when a judgment on the merits was adopted. It was quashed by the appellate court on 1 December 2005.
A further hearing was held on 28 March 2006.
Meanwhile, on 4 July 2005 the applicants brought a constitutional complaint about the length of the proceedings. On 2 May 2006 the Constitutional Court found a violation of the applicants’ right to a hearing within a reasonable time. It awarded each applicant 10,500 Croatian kunas (HRK) in compensation, and also ordered the Kaštel Lukšić Municipal Court to decide the case in the shortest time possible but no later than six months after the publication of the decision of the Constitutional Court in the Official Gazette.
On 30 May 2006 the Kaštel Lukšić Municipal Court gave a judgment. On 21 November 2007 it gave an additional judgment on the part of the claim which had not been addressed in the judgment of 30 May 2006.
On 13 March 2008 the Split County Court upheld both judgments in parts concerning the main claim, but quashed the part concerning the interest rate and the costs of proceedings and remitted it to the first instance. The proceedings in that respect are still pending.


ITEMID: 001-57712
LANGUAGEISOCODE: ENG
RESPONDENT: BEL
BRANCH: CHAMBER
DATE: 1991
DOCNAME: CASE OF VERMEIRE v. BELGIUM
IMPORTANCE: 2
CONCLUSION: Violation of Art. 14+8;Just satisfaction reserved
TEXT: 8. Mrs Astrid Vermeire is a Belgian national resident in Brussels. She is the recognised illegitimate daughter of Jérôme Vermeire, who died unmarried in 1939. He was the son of the late Camiel Vermeire and his late wife Irma Vermeire née Van den Berghe, who also had two other children, Gérard and Robert. They died in 1951 and 1978 respectively, Gérard unmarried and without issue, Robert survived by two children of his marriage, Francine and Michel.
9. The applicant’s grandparents, who had brought her up after her father’s death, both died intestate, Irma Vermeire née Van den Berghe on 16 January 1975 and Camiel Vermeire on 22 July 1980. As the grandmother’s heirs had remained co-owners in undivided shares up to the grandfather’s death, the two estates were realised and distributed to the legitimate grandchildren Francine and Michel in a single procedure. Astrid Vermeire was excluded under the old Article 756 of the Civil Code (see paragraph 13 below).
10. On 10 June 1981 she brought an action to claim a share in the estates before the Brussels Court of First Instance. In a judgment of 3 June 1983 that court allowed her the same rights as a legitimate descendant in the estates in question.
It based its decision in particular on paragraph 59 of the judgment given by the European Court in the Marckx case on 13 June 1979 (Series A no. 31, p. 26), and took the view that "the prohibition on discrimination between legitimate and illegitimate children as regards inheritance rights [was] formulated in the judgment sufficiently clearly and precisely to allow a domestic court to apply it directly in the cases brought before it".
11. The legitimate grandchildren appealed and on 23 May 1985 the Brussels Court of Appeal set aside the judgment. It held in particular that:
"in so far as Article 8 (art. 8) entails negative obligations prohibiting arbitrary interference by the State in the private or family life of persons residing within its territory, it lays down a rule which is sufficiently precise and comprehensive and is directly applicable, but this is not the case in so far as Article 8 (art. 8) imposes a positive obligation on the Belgian State to create a legal status in conformity with the principles stated in the said provision of the Convention; (...) given that on this point the Belgian State has various means to choose from for fulfilling this obligation, the provision is no longer sufficiently precise and comprehensive and must be interpreted as an obligation to act, responsibility for which is on the legislature, not the judiciary."
The Court of Appeal thus refused to give direct effect to the passages in the Marckx judgment relating to an illegitimate child’s inheritance rights on intestacy with respect to relatives of the parent by whom he or she has been recognised.
12. The Court of Cassation concurred substantially with the reasons for this decision, which was moreover consistent with its own case-law, and dismissed the applicant’s appeal on 12 February 1987.
13. The former Articles 756 and 908 of the Civil Code provided as follows:
"Illegitimate children shall not be heirs; the law does not allow them any rights in the estates of their deceased father and mother unless they have been legally recognised. It does not allow them any rights in the estates of the relatives of their father or mother."
"Illegitimate children may receive by disposition inter vivos or by will no more than their entitlement under the title ‘Inheritance on Intestacy’."
14. These provisions were repealed by a Law of 31 March 1987, which came into force on 6 June. That Law also inserted into the Civil Code a new Article 334, according to which:
"Whatever the method used to establish affiliation, children and their descendants shall have the same rights and obligations in respect of their father and mother and their relatives by blood and by marriage, and the father and mother and their relatives by blood and by marriage shall have the same rights and obligations in respect of the children and the children’s descendants."
15. Section 107 of the Law laid down the following transitional provisions:
"The provisions of this Law shall apply to children born before the date of its coming into force and still alive at that date, but shall not give rise to any rights in respect of successions taking place before that date.
However, the validity of acts and distributions done before the coming into force of this Law, under which a child born out of wedlock has been accorded rights greater than those allowed him by the provisions repealed by this Law, shall not be subject to challenge."
16. Regard should also be had to Articles 718, 724 and 883 of the Civil Code:
"Succession shall take place on death."
(wording in force at the time of the grandmother’s death)
"The legitimate heirs shall acquire as of right the possessions, rights and legal actions of the deceased, subject to the obligation to pay all the debts of the estate. Illegitimate children, the surviving spouse and the State must obtain a court order for possession in accordance with the procedures to be specified."
(wording in force at the time of the grandfather’s death)
"The legitimate heirs shall acquire as of right the possessions, rights and legal actions of the deceased, subject to the obligation to pay all the debts of the estate. Illegitimate children and the State must obtain a court order for possession in accordance with the procedures to be specified."
(wording following the Law of 31 March 1987)
"The heirs shall acquire as of right the possessions, rights and legal actions of the deceased, subject to the obligation to pay all the debts of the estate. The State must obtain a court order for possession in accordance with the procedures specified below."
"Each co-heir shall be deemed to have succeeded solely and immediately to all the property included in his share or which has come to him on a sale of undivided joint property, and never to have had ownership of the other property in the estate."
VIOLATED_ARTICLES: 14
8