ITEMID: 001-23829
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: GARAUDY v. FRANCE [Extracts]
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Roger Garaudy, is a French national who was born in 1913 and lives in Chennevières-sur-Marne. He is a philosopher and a writer as well as a former politician. He was represented before the Court by Ms I. Coutant Peyre, of the Paris Bar.
The applicant explained that he had written many books and essays on, among other things, history, philosophy and Marxist issues, but also on religion and the dialogue of civilisations. Having been a politician, a Marxist humanist and then a Christian humanist, he subsequently converted to Islam.
The facts of the case, as submitted by the parties, may be summarised as follows.
In December 1995 the applicant published a book entitled The Founding Myths of Israeli Politics, which was distributed through non-commercial outlets by La vieille taupe publishers and subsequently republished at the applicant's own expense in April and May 1996 by Samiszdat Roger Garaudy. Between February and July 1996 four criminal complaints, together with applications to join the proceedings as civil parties, were lodged against the applicant for denying crimes against humanity, publishing racially defamatory statements and inciting to racial or religious hatred or violence. The complaints concerned various passages from both editions of the book and were lodged by associations of former Resistance members, deportees and human rights organisations. The investigating judge's office started four judicial investigations in respect of the four complaints. Other associations subsequently sought leave to join the proceedings as civil parties. On 6 June 1996 the Paris public prosecutor also opened a judicial investigation in respect of the applicant on a charge of denying crimes against humanity.
In five orders made by the investigating judge of the Paris tribunal de grande instance on 7 March 1997, the applicant was committed to stand trial before that court for five offences. Five separate sets of proceedings were thus referred to the trial courts. The proceedings concerned two different editions of and different passages from the applicant's book. At each stage of the different proceedings the courts gave judgment on the same day during the same hearing and each party addressed them once in respect of all five cases. The courts were composed of the same judges, who examined the five cases at each stage but gave five different decisions.
...
On 22 February 1996 a criminal complaint and application to join the proceedings as a civil party was lodged by the National Union of Associations of Deported and Interned Members of the Resistance and the National Federation of Deported and Interned Members of the Resistance for denial of crimes against humanity. The complaint was lodged not only against the applicant, but also against Mr Pierre Guillaume, the editorial director of La vieille taupe, for publishing the applicant's book in December 1995, Chapters 2 and 3 (pp. 72 and 136) of which were the subject of the complaint.
Basing his decision on sections 23, 24, sixth paragraph, 24 bis, 42 and 43 et seq. of the Freedom of the Press Act of 29 July 1881, one of the investigating judges at the Paris tribunal de grande instance made an order on 7 March 1997 committing the applicant and Mr Pierre Guillaume for trial before that court on the charges of denying, and aiding and abetting the denial of a crime against humanity respectively.
On 27 February 1998 the court acquitted the defendants on the charges and dismissed the civil parties' claims. Noting that “section 24 bis [of the Act of 29 July 1881] refers ... expressly to the means of publication set out in section 23” and that “publication is therefore one of the constituent elements of the offence”, the court held that “publication must have been proved and be imputable to the defendant”. The court found that the prosecution had failed to adduce sufficient proof that the 1995 edition had been published within the meaning of section 23 of the Act of 29 July 1881. As publication had not been established, the offence had not been made out and the court did not examine the merits of the prosecution.
The applicant had asked the court to refer a preliminary question to the European Court of Human Rights on the compatibility of section 24 bis of the Act of 29 July 1881 with the European Convention on Human Rights, particularly Article 10. Pointing out that the Convention was directly applicable in France, the court declared the applicant's proposed preliminary question inadmissible.
The public prosecutor and seven civil-party associations appealed against the judgment of the Paris tribunal de grande instance.
In a judgment of 16 December 1998 the Paris Court of Appeal set aside the lower court's judgment and sentenced the applicant to a suspended term of six months' imprisonment and a fine of 50,000 French francs (FRF). It awarded the civil parties damages of one franc. Mr Pierre Guillaume was given a suspended term of six months' imprisonment and fined FRF 30,000. The court also ordered publication in the Official Gazette of the announcement of Mr Pierre Guillaume's conviction for publishing the applicant's book.
Basing its decision on section 24 bis of the Act of 29 July 1881 and the reference text to which it refers, namely Article 6 of the Statute of the Nuremberg International Military Tribunal, which defines crimes against humanity, the court held that the constituent elements of the offence of denying crimes against humanity had been made out.
It found, firstly, that the publication element had been made out because the book had been made available to the public on payment of a subscription.
It then examined the question raised by the applicant of the compatibility of section 24 bis of the Act of 29 July 1881 with Article 10 of the Convention. It confirmed that it was compatible with that provision, as follows:
“Article 10 of the aforementioned Convention has to be interpreted in the light of the provisions of Article 17 of that Convention, according to which none of its provisions may be interpreted as implying any right to engage in any activity or perform any act aimed at the destruction of the rights and freedoms set forth in the Convention.
Firstly, section 24 bis falls within 'the measures necessary in a democratic State' for the protection of the rights of others, provided for in Article 10, as it concerns the protection of the rights of the Nazis' victims in terms of ensuring and safeguarding the respect due to their memory. Moreover, a witness, Mr Finkelkraut, referred to 'the offensiveness of denying the survivors the true reasons for their suffering and the dead the true reasons for their death'.
Secondly, section 24 bis of the Act of 29 July 1881 is aimed at preventing or punishing the public denial of facts that have been the subject of a final ruling by the Nuremberg International Military Tribunal and relate to events that are totally incompatible with the values of the Convention for the purposes of Article 17.
With regard to the submission based on Lehideux and Isorni, the court notes that the European Court has twice ruled on the question of the application of Article 10 to crimes against humanity:
§ 47: '... [the case] does not belong to the category of clearly established historical facts – such as the Holocaust – whose negation or revision would be removed from the protection of Article 10 by Article 17.'
§ 53: 'There is no doubt that, like any other remark directed against the Convention's underlying values, the justification of a pro-Nazi policy could not be allowed to enjoy the protection afforded by Article 10.'
This submission cannot therefore succeed.”
Expressing itself as follows, the court found that the constituent elements of the offence of denying crimes against humanity had been made out:
“Having regard to the evidence produced in the case and to the submissions before the court, it appears that Mr Garaudy's intention, in his book, is to deny that a 'final solution', in the sense of people's extermination, of the Jewish question was organised. He also denies the method used, which was to send those unable or no longer able to work to their death in the gas chambers and incinerate their bodies.
Mr Garaudy's demonstration is structured around two themes: questioning the conditions in which the facts have been studied and questioning the facts themselves.”
With regard to his questioning of the conditions in which the facts have been studied, the court noted the following points:
“(i) Trivialisation of the facts: In respect of an event that has been regarded as exceptional – that of the destruction of human beings by reason of their membership of a race – Mr Garaudy makes a number of comparisons with the aim of trivialising the crime, firstly by comparing it to acts for which he blames the allies and, secondly, by drawing parallels with other historical events.
After reiterating a number of Hitler's comments on the fate that should have been reserved to Jews in the First World War ... and that in the event of a Second World War 'the result ... would be ... the annihilation of the Jewish race in Europe ...' (page 76), Mr Garaudy states, on page 81: 'Neither Churchill, nor Stalin, nor Truman was among the war criminals in the dock. Nor were any of the perpetrators of the very worst incitements to commit crime ... the incitement to commit a “genocide”, in the true sense of the word this time, made in 1942 in the book by the American Jew, Theodor Kaufman ...'; then in a footnote and on page 82: '... neither the Anglo-American leaders responsible for the Dresden bombing ... nor Truman, the perpetrator of the atomic apocalypse of Hiroshima and Nagasaki ... was among the accused at the Nuremberg trials ...'
Regarding the numbers involved (on page 138): 'Hitlerian domination is thus incorrectly described in certain propaganda as a “pogrom” of which the Jews were allegedly the principal, if not the only, victims. It was a human catastrophe which, unfortunately, is not without precedent since Hitler dealt with whites in the same way as European colonialists had dealt with “coloureds” for five centuries.'
(ii) Pejoration of the facts: In his book Mr Garaudy indicates the need for a debate: (page 135) 'As long as there is no academic and public debate between specialists of equal calibre on the report by the engineer Fred Leuchter, and the Cracow report ... doubt and even scepticism will remain.' This process, which he presents as one of historical exactitude, is in fact coupled with another process, which, by the terms used, consists in portraying the question of the systematic and massive extermination of Jews as a sham. Thus the words 'gas chambers', 'genocides' and 'holocausts' are put in quotation marks and presented as an 'unexpected alibi' ..., 'a myth dressed up as history and the political mileage gained from it', 'the myth of six million exterminated Jews that has become a dogma justifying and lending sanctity (as indicated by the very word Holocaust) to every act of violence' (page 85).
Although the word 'myth' can mean a symbolic representation, it appears from the context here that it is used to mean an untruth.
The author uses the same reasoning on the subject of the gas chambers, referring to the 'spectre of the gas chambers' (page 144), and the crematoriums: 'there are crematoriums in all the big cities, in Paris (at the Père-Lachaise), in London, and in all the major capitals and these incinerations evidently do not signify an intention to exterminate people' (page 145). That comparison removes any association with their use in the Nazi camps.
His approach is backed up by derisory comments regarding a number of terms used to refer to the events in question. Films on the subject are described as 'Shoah business' or 'fictional picture strips'. The Court has heard the parties' submissions regarding the origin of that term but, whatever it may be, the term has indeed been used in the instant case to describe the events in question as a fiction.
(iii) Discrediting the relevant institutions and witness evidence: Mr Garaudy refers to the Nuremberg Tribunal in terms which systematically call into question its legitimacy and undermine its actions. Hence the heading, on page 72: 'The Myth of the Nuremberg Trials'; on page 73: 'It is not an international tribunal since it is composed only of victors and, consequently, the only crimes to be judged are those committed by the vanquished'; and on page 112: 'the victors disguised in judges' gowns.' With regard to the Auschwitz trial, which concerned the same subjects, a parallel is drawn on page 110 with 'witch hunts' ...
As regards the photos from the Auschwitz Album, which Mr Garaudy produced before the Court again, 'they also rule out the possibility that such extermination could have occurred at the same time in any “secret” part of the “camp” ' (page 133).
In this context, the report by the engineer Leuchter, which denies the existence of the gas chambers, is presented as one of the only reports which 'would, if seriously and publicly debated, put an end to the controversy'.
(iv) Disputing the meaning of words such as overall solution, final solution ...:The defendant interprets these words every time as a solution to which recourse will be had only after the war (pages 96 and 107). Besides that, he considers that the only correct interpretation of these words is a geographical one: a deportation to Madagascar or to the east of the European continent.”
On the denial of crimes against humanity the court made the following findings:
“Mr Garaudy denies the nature of the final solution and disputes the number of Jewish victims and the cause of their deaths.
– Regarding the nature of the final solution: In Mr Garaudy's view, '... no one has ever been able to produce proof that, for the Nazis, the “final solution” of the Jewish problem meant extermination' (page 141).
He infers, however, from a number of quotations from various texts that this solution was in fact their exile:
Regarding a letter from Goering to Heydrich: ' “The only final solution” thus consisted in ridding Europe of its Jews by deporting them in ever larger numbers until the war (presuming we win it) allows them all to be put in a ghetto outside Europe (as first suggested in the Madagascar plan)' (page 94).
Regarding a document referred to as the Wannsee Protocol, which gives an account of a meeting of Nazi dignitaries: 'There is no question of gas chambers or of extermination in this document, but only of transferring Jews to Eastern Europe' (page 100).
Regarding a document written by Hitler: '... he defined, as early as 1919, ... what he had already described as his “ultimate goal”, “deportation of the Jews”. That was his “ultimate goal” until his death, as was the fight against “Bolshevism”, which ultimately got the better of him' (page 227).
The defendant suggests that the very idea of the Jews' destruction is implausible because it would have been inefficient: 'He [Hitler] is driven to mobilising extra troops by withdrawing the factory workforce, and was allegedly so fatally obsessed with his war effort that he took to exterminating prisoners and Jews, rather than employing them, albeit in inhuman conditions, on his work sites.' After Hannah Arendt referred to the 'crazy and fanciful' nature of that comment, Mr Garaudy writes, 'What is even stranger is that people as shrewd as Poliakov or Hannah Arendt had such fixed ideas that they failed to reconsider their surrealist theories' (pages 107 and 108) ...
– Regarding the number of victims and the cause of their deaths: In numerous passages Mr Garaudy disputes at the same time the number of Jewish deaths, the cause of their deaths and the use of gas chambers to kill them.
Regarding the number of deaths, on page 85: '.... we will endeavour to examine one of the untruths which still, after almost half a century, gains the most ground across the world today and not only in the Middle East: the myth of the six million Jews that has become a dogma.'
The title of a chapter on page 136: 'The myth of the Holocaust.'
In Mr Garaudy's view, the deaths were caused by the deportations: 'That was when they suffered the most, not only in the way that all civilians suffer in times of war ... but also forced labour ... to serve the German war effort ... Lastly, epidemics, such as typhus, seriously ravaged the concentration camp population, who were malnourished and reduced to a state of exhaustion ... Is it therefore necessary to resort to other methods to explain the terrible incidence of death among the victims of this treatment ...' (page 143).
The manner in which the author denies the existence of the gas chambers has already been indicated. The following are examples of more specific denials.
On page l45: ' “Gas chambers” therefore had to be added to the crematoriums to establish the dogma of extermination by fire.'
On page 236 (passage not included as such in the charge, but referred to here on account of the context): 'When it was proved, despite a considerable number of “eyewitnesses” to the existence of “gas chambers”, that they had never existed in Germany, it became necessary, in similarly arbitrary manner, to continue to affirm as undeniable identical evidence of their existence in the eastern camps.'
Lastly, the court held:
During the hearings, Mr Garaudy was invited to address the Court on all the issues which have just been examined. This was done in the light of his previous statements both before the investigating judge and the trial courts, which were read out to the court in full.
He maintained the content and import of those statements, which themselves confirmed the passages in respect of which he had been prosecuted. He indicated, among other things, that his purpose was to combat the risks posed by Zionism.
Before the Court the defendant reiterated, among other things, that there was no proof that the final solution meant the extermination of the Jews, ... denied the existence of gas chambers in Auschwitz, confirmed that he disputed the figure of six million dead. ...
It can be established from all the foregoing evidence that Mr Roger Garaudy has committed the offence of denying crimes against humanity.”
The applicant appealed on points of law against that judgment. In his submission, prosecuting him on the charge of denying crimes against humanity within the meaning of section 24 bis of the Act of 29 July 1881 did not fall within the exceptions authorised by Article 10 § 2 of the European Convention of Human Rights since his book was a politically polemical work that was devoid of any racist purpose and did not set out to deny the existence of Nazi crimes.
On 12 September 2000 the Court of Cassation dismissed the appeal on the following grounds:
“In declaring the defendant guilty, on the grounds reproduced in the appeal, of the offence of denying crimes against humanity on account of several passages from his book The Founding Myths of Israeli Politics, the Court of Appeal, which did not exceed the limits of the case as referred to it, justified its decision.
Having regard to the terms employed in the passages complained of and also to extrinsic elements contained in other parts of the book, the judges properly evaluated the significance and impact of the comments in question.
Article 10 of the European Convention of Human Rights, which guarantees the principle of the freedom of expression, provides in its second paragraph for certain restrictions or penalties, as are prescribed by law, which constitute necessary measures in a democratic society for the prevention of disorder and the protection of the rights of others. That is the purpose of section 24 bis of the Act of 29 July 1881.
Lastly, denial of the existence of crimes against humanity falls within the provisions of section 24 bis of the Act of 29 July 1881, even where presented indirectly or in terms expressing doubts or by insinuation. The offence is also made out where, on the pretext of attempting to ascertain an alleged historical truth, the aim is to deny the crimes against humanity committed by the Nazis against the Jewish community; that was the case here.
The submission must therefore fail.”
On 6 May 1996 the Association of the Sons and Daughters of Jews Deported from France lodged a criminal complaint, together with an application for leave to join the proceedings as a civil party, against Samiszdat Roger Garaudy publishers and the applicant for the offence of denying crimes against humanity. The complaint concerned the entire second edition of the applicant's book.
After being committed for trial before the Paris tribunal de grande instance in an order of 7 March 1997, the applicant was then convicted.
On 27 February 1998 the court found the applicant guilty of denying crimes against humanity and sentenced him to a fine of FRF 30,000. It awarded the civil parties one franc in damages and compensation of FRF 10,000. After examining the relevant passages, the court noted:
“It thus appears that, far from confining himself to political or ideological criticism of Zionism and the actions of the State of Israel – criticism that is perfectly legal under the legislation governing freedom of expression – or even giving an objective account of revisionist arguments and merely calling, as he claims, for a 'public and academic debate' on the historical event constituted by the gas chambers, Roger Garaudy has subscribed to those theories and engaged in a virulent and systematic denial of the existence of the crimes against humanity committed against the Jewish community, as adjudged by the Nuremberg International Military Tribunal.
The offence under section 24 bis has therefore been made out.”
The applicant, the public prosecutor and four civil-party associations appealed against the judgment of the Paris tribunal de grande instance.
In a judgment of 16 December 1998 the Paris Court of Appeal upheld the lower court's judgment and added a suspended term of six months' imprisonment. The court based its decision on reasoning analogous to that in the judgment delivered on the same date in the first set of proceedings.
As in the first set of proceedings, the applicant appealed to the Court of Cassation against that judgment.
On 12 September 2000 the Court of Cassation dismissed the appeal for reasons identical to those of the judgment delivered on the same date in the first set of proceedings.
Following an investigation opened at the request of the public prosecutor at the Paris tribunal de grande instance, the applicant was committed for trial before that court in an order of 7 March 1997.
On 27 February 1998, after examining the passages in respect of which the applicant was being prosecuted, the court found him guilty of the offence of denying crimes against humanity and sentenced him to a fine of FRF 50,000. It awarded the civil parties one franc in damages and FRF 10,000 in compensation. The court also ordered publication of the operative provisions of its judgment in the Official Gazette of the French Republic.
The applicant, the public prosecutor and five civil-party associations appealed against that judgment.
In a judgment of 16 December 1998 the Paris Court of Appeal upheld the aforementioned judgment and added a suspended term of six months' imprisonment. It also ordered the publication of an announcement of the applicant's conviction in the Official Gazette of the French Republic. The court based its judgment on reasoning analogous to that in the judgments delivered on the same date in the first and second sets of proceedings.
As in the previous two sets of proceedings, the applicant appealed to the Court of Cassation.
On 12 September 2000 the Court of Cassation dismissed the appeal on the same grounds as those set out in the judgments delivered on the same date in the first and second sets of proceedings.
On 23 May 1996 the International League against Racism and Anti-Semitism (LICRA) lodged a criminal complaint, together with an application to join the proceedings as a civil party, against the applicant for the offence of defaming a group of persons on the ground of their membership or non-membership of an ethnic group, race or religion. In an order of 7 March 1997 the applicant was committed for trial before the Paris tribunal de grande instance.
On 27 February 1998 the court, basing its decision on sections 23, 29, first paragraph, and 32, second paragraph, of the Act of 29 July 1881 after examining the passages in question, found the applicant guilty of the offence of publicly defaming a group of persons (the Jewish community) and sentenced him to a fine of FRF 20,000. It awarded the civil parties one franc in damages and compensation in the amounts of FRF 10,000, FRF 5,000 and FRF 1.
The applicant, the public prosecutor and five civil-party associations appealed against the judgment of the Paris tribunal de grande instance.
In a judgment of 16 December 1998, the Paris Court of Appeal upheld the aforementioned judgment, adding a suspended term of three years' imprisonment and ordering the payment of FRF 20,000 to LICRA for the legal costs it had incurred.
In its judgment the court found as follows:
“Contrary to his [the applicant's] allegations, the charge of defaming the Jewish community is not based on the criticism of the policies pursued by the State of Israel – only rarely mentioned as such, moreover, in the book in question – but the substance of the book as constituted by the passages that form the basis of the prosecution's case. The explicit and avowed aim of the book is the description of what the author calls the 'founding myths' of that policy, those myths being presented as deliberate distortions of history ('myth of the six million') or mystifications for political ends ... by the Zionists ('the Israeli-Zionist lobbies in France and the United States') who were 'the major beneficiaries', in order to legalise all their external and internal acts of violence by placing themselves above the law and endangering world unity and peace.”
The court found that the passages referred to, whether taken alone or as part of the whole book, “seriously harm[ed] the Jewish community as a whole, as the lower courts [had] properly decided”. In the court's opinion, the indiscriminate use of the terms “Zionist”, “Jewish vote”, “Jewish lobby”, “Israeli” or “State of Israel” in the applicant's book, and in particular in the passages complained of, served to confuse the reader. In the court's opinion, “such confusion, having regard to the intellectual level and to the influence which the defendant claim[ed], particularly in the Middle East, referring as he [did] to twenty-five translations of the book in question, ha[d] a purpose that [had] indeed [been] the one reflected in the charge: damaging the honour and reputation of that community”.
The applicant appealed on points of law against that judgment. In his submission, the statement about “lobbying”, which was a legal activity, fell outside the charge of defamation.
On 12 September 2000 the Court of Cassation gave judgment, dismissing the appeal on the following grounds:
“In finding the defendant guilty of the offence, the judges ruled in accordance with the grounds reproduced in the appeal.
In the light of those statements, the judges did not exceed the limits of the case as referred to them and properly judged the significance and impact of the comments complained of.
Suggesting that a community referred to in section 32, second paragraph, of the Act of 29 July 1881 engaged in the practice of 'lobbying' in order to justify acts of violence 'endangering world unity and peace' infringes the honour and reputation of that community and amounts to the offence referred to in and punishable under the above-mentioned provision.
The interests protected by that provision and those protected by the provision making it an offence to deny crimes against humanity are different in nature. They do not necessarily concern the same persons or the same groups of persons and consequently the two offences, where both are charged, do not constitute a plurality of offences in respect of the same criminal act.”
On 1 July 1996 the Movement against Racism and for Friendship among Peoples (MRAP) lodged a criminal complaint, together with an application to join the proceedings as a civil party, against the applicant for publicly defaming a group of persons on the ground of their membership or non-membership of a particular ethnic group or race and inciting to discrimination, hatred or violence against a group of persons on the ground of their origin or their membership or non-membership of a particular ethnic group or race. In an order of 7 March 1997 the applicant was committed for trial before the Paris tribunal de grande instance.
On 27 February 1998, basing its decision on sections 23, 24, sixth and seventh paragraphs, 29, first paragraph , 32, second paragraph, 42 et seq., the court acquitted the applicant of incitement to racial discrimination, hatred or violence, but convicted him of publicly defaming a group of persons, namely the Jewish community. The applicant was sentenced to a fine of FRF 20,000 and the court awarded the civil parties one franc in damages.
The court acquitted the applicant on the first offence on the ground that, although “in both passages referred to in the charge sheet the author singled out ... the Jewish community on account of its allegedly excessive influence on the media and its power to 'manipulate' public opinion”, “in order for the offence of incitement under ... section 24, sixth paragraph, of the [Freedom of the] Press Act to be made out, it [was] necessary for the impugned text, both in terms of its significance and its impact, to incite the public to discrimination, hatred and violence”. The court concluded that there was nothing in the passages that “incite[d] or even encourage[d] readers to adopt the behaviour or sentiments punishable under the Act”.
However, the court convicted the applicant of public defamation for using the term “Shoah business” in his book on the following grounds:
“In associating the term 'business' with the word 'Shoah' (which means 'catastrophe') by which Jews refer to the genocide they suffered during the Second World War, and in expressing doubts as to whether it actually occurred, the defendant suggests, in these passages, that the Jews deceitfully fabricated evidence of the reality and extent of the genocide for financial gain.
That allegation undeniably infringes the honour and reputation of the entire Jewish community.”
The applicant, the public prosecutor and four civil-party associations appealed against the judgment of the Paris tribunal de grande instance.
In a judgment of 16 December 1998 the Paris Court of Appeal set aside the applicant's acquittal on the charge of incitement to racial discrimination and hatred and upheld his conviction for public defamation. The applicant was sentenced to a suspended term of three months' imprisonment and a fine of FRF 20,000.
Regarding the offence of incitement to racial discrimination and hatred, the court held:
“... it is indeed the Jewish community that is targeted by the impugned passages and not simply the supporters of the State of Israel's policies. That community is clearly accused of constituting a minority concentrated in the areas of politics, the press, radio, television and publishing capable of collusion, exerting influence disproportionate to its numbers and manipulating public opinion in favour of the interests it defends.
By giving readers the impression that they are being manipulated by a category representing 2% of the French population that acts like a secret bandmaster, the author cannot but encourage sentiments of rejection and hatred of that fraction of society, in this case the Jewish community.
The impugned comments do not have to contain an incitement to hatred, violence or discrimination. It is sufficient, for the offence to be made out, for the passages to be such as to arouse those sentiments.”
The applicant appealed on points of law against that judgment.
On 12 September 2000 the Court of Cassation dismissed the appeal on the following grounds:
“In declaring the defendant guilty, on the grounds reproduced in the appeal, of the offences of publicly defaming a group of persons on the ground of their origin, their membership or non-membership of a particular ethnic group, nation, race or religion and of incitement to hatred or violence against that group of people, on account of several passages of his book The Founding Myths of Israeli Politics, the Court of Appeal, which did not exceed the limits of the case as referred to it, properly assessed the significance and impact of the impugned comments and found that all the elements of the offences – in terms of both the actus reus and the mens rea – had been made out.”
The applicant applied to the Paris Court of Appeal five times for the proceedings to be joined, relying on the fact that the five cases concerned the same book and were dealt with at the same hearing. In his submission, the reason for examining each case separately had been to interfere with the exercise of the rights of the defence and provide the prosecution with additional pretexts.
The court dismissed the application five times. It considered that the proceedings against the applicant, “although they concern the same author, involve two different editions of the same work; the reasons for keeping them separate is that several different sets of proceedings were brought by the public prosecutor and by the [different] civil parties, which each referred to ... different passages or passages of different impact”. However, the court did take the following measure: “On the other hand, the parties have been informed that all the court records will be appended to each case file, as has been done, moreover, for all the previous investigative measures.”
The five suspended prison sentences were ordered to run concurrently. The fines (totalling FRF 170,000) were cumulative, however, as were the amounts payable to the civil-party associations (totalling FRF 220,021).
In its five judgments the Paris Court of Appeal decided to impose a heavier sentence on the applicant than the one imposed by the tribunal de grande instance on the ground that the sentence should be determined “on the basis of the seriousness of the offence and the status of the offender”. The court found that the offences with which the applicant had been charged were particularly serious in that they amounted “in reality to deconstructing the values on which the fight against racism and particularly anti-Semitism are based”, and that “the author twist[ed] his comments in such a way as to discredit the Jewish community as a whole, arouse hostility towards it by associating himself with revisionist theories ... and undermine not only the values of the community in question but the universal values of our civilisation”.
As regards the status of the author, the court took account, in determining sentence, of the applicant's position as a recognised academic in France and abroad, of his responsibility as a former lecturer and politician and of his avowed intention to wield international influence, particularly in the Middle East.
...
“Where a crime or major offence is committed, anyone who, by uttering speeches, shouts or threats in a public place or meeting, or by means of a written or printed matter, drawing, engraving, painting, emblem, image, or any other written, spoken or pictorial item sold or distributed, offered for sale or exhibited in a public place or meeting, or by means of a placard or poster on public display, has directly and successfully incited another or others to commit the said crime or major offence shall be punished as an accomplice thereto.
This provision shall also apply where the incitement is followed only by an attempt to commit a crime, as defined in Article 2 of the Criminal Code.”
Anyone who, by one of the means set forth in the preceding section, has directly but unsuccessfully incited another to commit one of the following offences shall be liable to a prison sentence of five years and a fine of FRF 300,000:
1o intentional homicide, intentional bodily harm or sexual assault as defined in Book II of the Criminal Code;
2o theft, extortion or wilful destruction, damage or vandalism constituting a danger to persons as defined in Book III of the Criminal Code.
Those who, by the same means, have directly incited another to commit a crime or major offence against the fundamental interests of the nation as defined by Title I of Book IV of the Criminal Code shall be liable to the same penalties.
Anyone who, by one of the means set out in section 23, has made a public defence of the crimes referred to in the first paragraph, a war crime, a crime against humanity or a crime or major offence of collaboration with the enemy shall be liable to the same penalty.
Anyone who, by the same means, has directly incited another to commit a terrorist act as defined in Title II of Book IV of the Criminal Code or has made a public defence of such an act shall be liable to the penalty set forth in the first paragraph.
Anyone who engages in seditious shouting or chanting in a public place or assembly shall be liable to the fine prescribed for class 4 offences.
Anyone who, by one of the means set forth in section 23, incites another to discrimination, hatred or violence against a person or group of people on the ground of their origin or their membership or non-membership of a specific ethnic group, nation, race or religion shall incur a term of imprisonment of one year and a fine of FRF 300,000 or one of those penalties only.
Where a conviction is secured for one of the offences set forth in the preceding paragraph, the court may also order
1o the offender to be stripped of the rights listed in 2o and 3o of Article 131-26 of the Criminal Code for a maximum of five years, save where the offender's responsibility is engaged under section 42 and section 43, first paragraph, of this Act or under the first three paragraphs of section 93-3 of the Audiovisual Communication Act of 29 July 1982 (no. 82-652);
2o the decision to be posted up or displayed pursuant to Article 131-35 of the Criminal Code.”
“Anyone who denies the existence of one or more crimes against humanity as defined in Article 6 of the Statute of the International Military Tribunal annexed to the London agreement of 8 August 1945 which have been committed either by the members of an organisation declared criminal under Article 9 of the Statute or by a person found guilty of such crimes by a French or international court shall be liable to the penalties set forth in section 24, sixth paragraph.
The court may also order
1o the decision to be posted up or displayed pursuant to Article 131-35 of the Criminal Code.”
“It shall be defamatory to make any statement or allegation of a fact that damages the honour or reputation of the person or body of whom the fact is alleged. The direct publication or reproduction of such a statement or allegation shall be an offence, even if expressed in tentative terms or if made about a person or body not expressly named but identifiable by the terms of the impugned speeches, shouts, threats, written or printed matter, placards or posters. It shall be an insult to use any abusive or contemptuous language or invective not containing an allegation of fact.”
“Defamation of an individual by one of the means set forth in section 23 shall be punishable by a fine of FRF 80,000. Defamation by the same means of a person or group of people on the ground of their origin or their membership or non-membership of a specific ethnic group, nation, race or religion shall be punishable by a term of imprisonment of one year and a fine of FRF 300,000 or one of those penalties only.
Where a conviction is secured for one of the offences listed in the preceding paragraph the court may also order
1o the decision to be posted up or displayed pursuant to Article 131-35 of the Criminal Code.”
In a judgment of 24 October 1989, the Court of Cassation held:
“Since publication is the element by which an offence against the press legislation is made out, any reproduction in a published periodical of a text that has already been published shall, regardless of the language in which it is written, constitute a further offence; accordingly, without infringing the non bis in idem rule, re-publication shall expose the offender to criminal proceedings, irrespective of those brought following initial publication.” (Bulletin criminel no. 428)
“Where a court is required to deal with several sets of proceedings relating to connected facts, it can order them to be joined of its own motion or at the request of the public prosecutor or one of the parties.”
In a judgment of 24 October 1989 the Court of Cassation held:
“The non bis in idem rule does not apply where the acts giving rise to the first set of proceedings are not legally or factually identical to the facts relating to the second set of proceedings.” (Bulletin criminel no. 211)
...
“In the event of conviction for several serious offences or less serious offences, only the heaviest penalty available for one of the individual offences shall be imposed.”
That provision was repealed on 1 March 1994 and replaced by the following provisions:
“There is aggregation of offences where a further offence is committed before the offender is finally convicted of a previous offence.”
“Where, in separate proceedings, the defendant has been convicted of several offences, the penalties shall be served consecutively up to the statutory limit for the most serious offence. However, sentences of the same type may be ordered to be served concurrently, in full or in part, either by the last court to deal with the case or in the conditions set out in the Code of Criminal Procedure.”
...


ITEMID: 001-101181
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: COMMITTEE
DATE: 2010
DOCNAME: CASE OF DZHIGARKHANOV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)
JUDGES: Anatoly Kovler;Elisabeth Steiner;George Nicolaou
TEXT: 4. The applicant was born in 1942 and lives in Budennovsk of the Stavropol Region.
5. On 5 February 1998 the applicant was stopped by the police and brought to a sobering-up centre. He was examined by a doctor who found that he was sober. The applicant was immediately released.
6. On 18 November 1998 the applicant sued the local police department for compensation for unlawful arrest. The applicant’s complaint was admitted by the Budennovsk Town Court of the Stavropol Region (“the Town Court”). The first hearing was scheduled for 25 December 1998, but on that date it did not take place. No action was taken on the case until December 2001.
7. On 25 December 2001 the Town Court identified the Ministry of the Interior Affairs as the respondent and involved the local police department as a third party in the proceedings.
8. On 30 December 2002 the Town Court held in a default judgment that the applicant’s arrest had been unlawful and partly allowed his claim for compensation.
9. On 29 January 2003 the Town Court granted an extension of the time allowed for submission by the respondent of their grounds of appeal.
10. On 6 February 2003 the Stavropol Regional Court (“the Regional Court”) overturned the judgment on appeal for failure to notify the respondent about the hearing in a timely manner and remitted the case to the first instance.
11. On 20 February 2003 the Town Court again allowed the applicant’s claim in part, but on 23 April 2003 the judgment was set aside on appeal by the Regional Court for failure to involve the finance authorities in the proceedings. The appeal court required a new hearing. It also delivered a special ruling in which it reprimanded the judge in charge of the applicant’s case for breaches of the procedural time-limits for consideration of the case.
12. On 6 June 2003 the Town Court judge withdrew from the proceedings.
13. On 4 July 2003 the Town Court rejected the applicant’s claims as unsubstantiated.
14. On 20 August 2003 the Regional Court set aside the judgment on appeal and allowed the applicant’s claim in part. It held that his arrest had been unlawful and ordered that the Budennovsk town administration pay the applicant 5,000 Russian roubles (RUB).
15. On an unspecified day the town administration lodged an application for supervisory review of the decision of 20 August 2003.
16. On 8 December 2003 the Presidium of the Regional Court granted the application, quashed the judgment of 20 August 2003 for failure to notify the town administration about the hearing and remitted the case to the Regional Court.
17. On 1 March 2004 the Regional Court quashed the judgment of 4 July 2003 and remitted the case to the Town Court.
18. On 7 May 2004 the Town Court designated the Ministry of Finance of the Stavropol Region as a co-respondent.
19. On 12 July 2004 the Town Court granted the applicant’s claim in part and ordered that the Ministry of Finance of the Stavropol Region pay the applicant RUB 15,000.
20. On 8 September 2004 the Regional Court upheld the judgment on appeal.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-71359
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: SUSS v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Mark Villiger
TEXT: The applicant, Werner Süß, is a German national, who was born in 1940 and lives in Berlin. The respondent Government are represented by their Agent, Mr K. Stoltenberg, Ministerialdirigent, and, subsequently, Mrs A. Wittling-Vogel, Ministerialdirigentin, of the Federal Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant’s daughter F. was born on 29 November 1984. In August 1989 the applicant and G.S., his then wife, separated. Since then F. has been living with her mother, who was awarded custody of her. On 6 December 1992 the applicant had his last contact with F.
On 23 May 1995 the Berlin Tempelhof-Kreuzberg District Court suspended the applicant’s access to F. This judgment was upheld by the Berlin Court of Appeal on 4 March 1997. On 15 September 1997 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint lodged against the latter judgment.
In his first application (no. 40324/98) to this Court, the applicant complained, in particular, that the said court decisions suspending his access to F. amounted to a breach of his right to respect for his family life. He further claimed that the court proceedings concerned had not been fair. On 20 September 2001, the Court declared admissible these complaints.
On 17 July and 13 August 1997 the applicant lodged a motion under Section 1634 § 3 of the Civil Code (see ‘Relevant domestic law’ below) to order G.S. to provide him with further information about their daughter F., notably her current place of residence.
On 23 June 1998 the Zossen District Court, sitting in guardianship matters, dismissed the applicant’s motions. It rendered its decision following a hearing attended by G.S. and F., then aged thirteen. The applicant, who had been duly summoned, had not attended the hearing.
In its reasoning, the District Court referred to its final decision of 20 January 1998 according to which the applicant was entitled to one photograph of F. each year together with the final school report in summer. Furthermore, G.S. had been ordered to supply the applicant with copies of the interim school report of 1997/98 and of any further final school reports or reports on subsequent professional training, respectively. The applicant was also entitled to information about his daughter’s health every six months and to immediate notice about any change in her state of health.
The District Court found that the applicant was not entitled to be informed of his daughter’s place of residence and of the address of her school on the ground that such information was contrary to the child’s well-being. It noted that the applicant did not have custody of F. and therefore had no power of co-determination in school matters. His right of access to F. had been suspended. In the court’s view, the applicant claimed the information in question only in order to establish access to F., which was contrary to her best interests. Moreover, G.S. feared reprisals. The court further noted that F., having been heard by the Youth Office and in court on 23 June 1998, refused any contacts with her father.
The District Court also dismissed the applicant’s request for coercive measures, noting that G.S. had complied with the court order of 20 January 1998.
On 9 June 1999 the Potsdam Regional Court, having heard the applicant and G.S., dismissed the applicant’s appeal. The Regional Court considered that the District Court had not exceeded its margin of appreciation when deciding that no information about the child’s whereabouts should be disclosed. Having regard to the strained relations between the parents, this had been in the child’s best interests. The information requested was not of such an importance that it had to be disclosed against G.S.’s express will. The Regional Court took into consideration that in a decision dated 19 November 1998, the District Court had initiated measures to re-establish contacts between the applicant and his daughter cautiously.
Following the entry into force of the amended Law on Family Matters on 1 July 1998, the applicant lodged a second request to be informed of his daughter’s place of residence on 11 August 1999. He argued that he needed F.’s address in order to be able to maintain a minimum of contacts with her, because having to send letters to her via the Youth Office was discriminating against him.
On 26 October 1999 the Zossen District Court, sitting in family matters, dismissed the applicant’s request. It confirmed that the daughter’s interest to avoid the risk of contacts with the applicant outweighed the latter’s interest to be informed of her address pursuant to Section 1686 of the Civil Code (see ‘Relevant domestic law’ below).
In this connection, the Zossen District Court noted that on 30 September 1999 it had decided in a different set of proceedings instituted by the applicant that his access to F. remained suspended. It had found in that judgment that F., then aged fourteen, had expressly refused any contacts with her father and was crushed between her parents’ conflicting interests. In the case before it, the Zossen District Court therefore had to avoid a deterioration of F.’s tense mental state, which had not least been caused by never-ending court proceedings and examinations by psychological experts.
On 19 June 2000 the Brandenburg Court of Appeal dismissed the applicant’s appeal. Referring to its hearing of the parties on 19 May 2000 in the context of further proceedings concerning the applicant’s right of access, it observed that the relations between G.S. and the applicant remained strained. Therefore, the applicant was not entitled to information about his daughter’s whereabouts. It noted that since the suspension of access about five years ago, F. had only once, in May 1999, seen the applicant outside court. In these circumstances, any risk that the applicant would go to the house where G.S. and F. were living had to be avoided.
On 14 July 2000 the applicant lodged a complaint with the Federal Constitutional Court, comprising two pages. He claimed that the decision of the Brandenburg Court of Appeal not to order the disclosure of his daughter’s address violated his right to respect for his family life, his right to be heard and the principle of equality.
On 30 August 2000 the Federal Constitutional Court, without giving further reasons, refused to admit the applicant’s constitutional complaint.
On 3 December 2001 the Zossen District Court ordered G.S. to pay a coercive penalty of 500 Deutschmarks for failure to comply with its order dated 20 January 1998 to supply the applicant with certain information about F.’ personal circumstances.
On 17 May 2002 the Brandenburg Court of Appeal confirmed the judgment of the Zossen District Court delivered on 30 September 1999 that the applicant’s access to F. remain suspended. It found that it would be against the best interests of F., who had almost attained the age of majority, to order contacts against her firmly expressed will.
On 29 November 2002 F. attained the age of majority.
Before the entry into force of the amended Law on Family Matters (Reform zum Kindschaftsrecht) on 1 July 1998, the relevant provision of the Civil Code concerning a parent’s right to information about his or her under age child born in wedlock was worded as follows:
Section 1634
“3. A parent not having custody who has a legitimate interest in obtaining information about the child’s personal circumstances may request such information from the person having custody in so far as this is in keeping with the child’s best interests. The guardianship court shall rule on any dispute over the right to information.”
The relevant provision in force since 1 July 1998, Section 1686 of the Civil Code, provides as follows:
“Each parent who has a legitimate interest in obtaining information about the child’s personal circumstances may request such information from the other parent in so far as this is not contrary to the child’s best interests. The family court shall rule on any dispute.”
Proceedings in family matters are governed, inter alia, by the Act on Non-Contentious Proceedings (Gesetz über die Angelegenheiten der freiwilligen Gerichtsbarkeit). Pursuant to Sections 27 and 28 of that Act, as applicable to the proceedings concerning the applicant’s first request for information, a further appeal (weitere Beschwerde) to the Court of Appeal lay against a decision of the Regional Court. If an appellant wished to lodge his further appeal in writing, his submissions had to be signed by a lawyer (Section 29 § 1 of the said Act).


ITEMID: 001-58034
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 1997
DOCNAME: CASE OF AKKUŞ v. TURKEY
IMPORTANCE: 2
CONCLUSION: Violation of P1-1;Preliminary objection rejected;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: Paul Mahoney
TEXT: 6. In September-October 1987, the National Water Board (Devlet Su isleri), a State body responsible for dam construction, expropriated land belonging to Mrs Akkus and her husband, who died in 1992, in order to build the Altinkaya hydro-electric dam in the Kizilirmak Valley. The land, which was located in the village of Gökdogan (Sinop) had been used for growing rice. It now lies under water.
More than 3,000 families (17,000 people in all) were affected by the expropriations resulting from the dam construction scheme.
7. According to the applicant, a scientific study commissioned by the National Water Board and carried out by the Aegean Faculty of Agronomy found the land to be worth between 3,200 and 3,500 Turkish liras (TRL) per square metre whereas the amount paid in 1987 was between TRL 800 and 850.
8. A committee of experts of the National Water Board assessed the value of the applicant’s land at TRL 122,000. That amount was paid to her when the expropriation took place.
9. On 12 October 1987 the applicant lodged an application with the Duragan Court of First Instance for increased compensation and requested that the rate of inflation be taken into account when determining the additional loss. On 22 June 1989 the court awarded her additional compensation of TRL 271,039 and simple default interest at the rate of 30% per annum from 4 September 1987, the date of the expropriation. The total compensation thus came to TRL 393,039. She was also awarded TRL 61,123 for legal costs.
10. The Board appealed to the Court of Cassation on points of law. Mrs Akkus filed a cross-appeal based on Article 105 of the Code of Obligations (see paragraph 14 below), in which she sought a ruling that the basis for calculating the additional loss should be the rate of inflation and not the rate of statutory interest for delay. On 17 September 1990 the Court of Cassation upheld the judgment at first instance.
11. The additional compensation was paid in February 1992, that is to say six months after the application was lodged with the European Commission of Human Rights and approximately seventeen months after the Court of Cassation’s decision.
12. Mrs Akkus now lives with her son-in-law, who provides for her needs.
13. By Law no. 3095 of 4 December 1984 the rate of interest on overdue State debts is 30% per annum. At the material time the average rate of inflation was 70% per annum and the rate of interest for delay payable on debts owed to the State was 7% per month (84% per annum) (section 51 of Law no. 6183 on the Collection of Debts due to the State and Cabinet Ordinance no. 89/14915).
14. Article 105 of the Code of Obligations provides:
"Where the loss sustained by the creditor exceeds the interest for late payment and the debtor is unable to show that the creditor has been at fault, it is for the debtor to make good the loss.
If the additional loss can be assessed immediately the court may determine the amount when giving its decision on the merits."
15. On 3 June 1991 the Fifth Civil Division of the Court of Cassation, which has jurisdiction in cases concerning compensation for expropriation, ruled as follows:
"The way in which creditors are compensated for the late payment of debt is through statutory interest. Since creditors are able, when resorting to enforcement measures, to claim the amount due to them plus interest, they are not entitled to claim any other form of compensation; accordingly, the decision to grant the creditor’s claim, on the basis that the rate of inflation was high, was ill-founded..."
16. On 23 February 1994 (judgment E: 1993/5-600, K: 1994/80) the Court of Cassation, sitting as a full court, ruled as follows:
"Law no. 3095 was approved and came into force when inflation in the country was high with rates well over 30%. Notwithstanding that fact, the legislature fixed the rate of interest for delay at 30%. In the present case it would therefore be unlawful to award compound interest at a rate exceeding 30% on the erroneous basis that the rate of interest payable on bank deposits was applicable."


ITEMID: 001-110790
LANGUAGEISOCODE: ENG
RESPONDENT: BIH
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: PREVLJAK AND OTHERS v. BOSNIA AND HERZEGOVINA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: George Nicolaou;Lech Garlicki;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: The applicants, Ms Medina Prevljak, Ms Sabira Šahinović, Mr Edin Prevljak and Ms Edina Rokvić, are citizens of Bosnia and Herzegovina who were born in 1939, 1961, 1963 and 1965, respectively. They were represented before the Court by Kebo & Guzin, a law firm based in Mostar. The Government of Bosnia and Herzegovina (“the Government”) were represented by their Agent, Ms M. Mijić.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicants were registered owners of a public road running alongside their house in Konjic.
On 27 September 2006 the Konjic Municipality started civil proceedings against the applicants before the Konjic Municipal Court. It maintained that the applicants had mistakenly been registered as the owners of the road and requested the rectification of the register.
On 17 May 2007 the Konjic Municipal Court dismissed the claim. It held that the applicants had acquired the title by adverse possession.
On 22 November 2007 the Mostar Cantonal Court ruled in favour of the Konjic Municipality on the grounds that public roads were not subject to the rules on adverse possession. It appears that the register was then rectified and that the applicants’ title to the road was extinguished as a result.
On 14 January 2008 the applicants lodged an appeal on points of law with the Supreme Court of the Federation of Bosnia and Herzegovina as well as an appeal with the Constitutional Court of Bosnia and Herzegovina.
On 13 May 2008 the Constitutional Court rejected the case as premature as it was still pending before the Supreme Court. It instructed the applicants that they could again lodge a constitutional appeal after the Supreme Court had rendered its decision.
On 4 December 2008 the Supreme Court rejected the appeal because the value of the claim did not exceed 10,000 convertible marks (BAM) and the case did not raise any questions affecting the application of the law in other cases.
On 9 January 2009 the applicants lodged a new constitutional appeal, as instructed by the Constitutional Court in its decision of 13 May 2008.
On 17 September 2009 the Constitutional Court rejected the case as out of time. It held that the appeal on points of law had not been an effective remedy and that the applicants should have therefore lodged a constitutional appeal within 60 days from the delivery of the judgment of 22 November 2007. On 3 November 2009 the applicants requested the Constitutional Court to revise that decision in view of the fact that they had lodged their first constitutional appeal regarding the same matter on 14 January 2008. On 29 June 2010 the Constitutional Court accepted that request. On 12 October 2011 it examined the merits of the case and dismissed the case as manifestly ill-founded.
The Roads Act 2002 was in force at the relevant time (from 22 February 2002 until 23 March 2010). Section 4 of that Act provided that public roads were a matter of general interest and that title to a public road could not be acquired. The Roads Act 2010, which entered into force on 23 March 2010, contains a similar provision (see section 3 of that Act).
The Civil Procedure Act 2003 has been in force since 5 November 2003. Under section 237 of that Act an appeal on points of law is, in principle, not allowed if the value of the claim in issue does not exceed BAM 10,000, but the Supreme Court may exceptionally take such a case if it considers that it raises a question affecting the application of the law in other cases.
The current Rules have been in force since 31 August 2005. Under Rule 70 a party may, in the event of the discovery of a fact which might by its nature have a decisive influence on the outcome of the dispute concerned and which, when a decision was taken, was unknown to the Constitutional Court and could not reasonably have been known to that party, request the Constitutional Court, within a period of six months after that party acquired knowledge of the fact, to revise that decision.
In principle, if a constitutional appeal concerns civil proceedings dealing with a claim the value of which does not exceed BAM 10,000, an appeal on points of law is not considered to be an effective remedy for the reason that the Supreme Court deals with the merits of such appeals only exceptionally (section 237 of the Civil Procedure Act 2003). Therefore, the Constitutional Court will not reject such a case on non-exhaustion grounds only because an appellant has not lodged an appeal on points of law. In the same way, the Constitutional Court will reject such a case as out of time if an appellant has awaited the outcome of his or her appeal on points of law and has thus lodged a constitutional appeal more than 60 days from the date of delivery of the second-instance decision (unless the Supreme Court has exceptionally examined the merits of the case). However, if an appellant lodges a constitutional appeal in parallel with an appeal on points of law, the Constitutional Court may reject the constitutional appeal as premature pending the outcome of the appeal on points of law even if the value of the civil claim in issue does not exceed BAM 10,000. If so, the appellant may lodge a second constitutional appeal within 60 days from the date of delivery of the decision on the appeal on points of law (regardless of weather the Supreme Court has dealt with the merits of that case or not).


ITEMID: 001-106214
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF DRAGOSTEA COPIILOR - PETROVSCHI - NAGORNII v. MOLDOVA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1+P1-1;Just satisfaction reserved
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi;Nona Tsotsoria
TEXT: 5. The applicant company, which runs a primary school in Chişinău, was party to civil proceedings in 2001. By a judgment of the Rascani District Court of 25 July 2001 the applicant company was ordered to pay Mr M. 78,400 United States dollars.
6. On an unspecified date in 2006 Mr M. applied to the Department for the Execution of Judgments for the enforcement of the judgment of 25 July 2001. However, his application was dismissed on the ground that it had been time-barred. In a letter dated 4 May 2006 Mr M. was informed that no enforcement warrant in respect of the judgment of 25 July 2001 had been lodged between 2001 and 2006.
7. On 22 May 2006 Mr M. lodged a request with the Rascani District Court asking for an extension of the three-year time-limit for requesting enforcement of the judgment in his favour. He argued, inter alia, that he had submitted a request for enforcement sometime in 2001 together with the enforcement warrant, but that it had allegedly been lost by the Department for the Execution of Judgments.
8. On 18 July 2007 the Chişinău Court of Appeal finally dismissed Mr M’s request. It found, inter alia, that the enforcement of a judgment may be requested by an interested party to the proceedings within three years from the date when the judgment became final and enforceable. Since Mr M. had made such a formal request only some five years after the judgment of 25 July 2001 had become final, he had missed the deadline. The court found that Mr M. could not produce any plausible evidence justifying his missing the time-limit and could not prove his contention that he had submitted a request which had subsequently been lost by the Department for the Execution of Judgments.
9. On 20 July 2007 Mr M. lodged a request for review of the final judgment of 18 July 2007. He relied on Article 449 (c) of the Code of Civil Procedure (see paragraph 14 below) and argued that according to a letter dated 13 July 2007 sent to him by the Department for the Execution of Judgments in reply to a letter from him, an enforcement warrant had been registered with the Department on 31 July 2001 but had been returned to the Rascani District Court two days later.
10. On 22 August 2007 the Chişinău Court of Appeal refused Mr M.’s request for review because the ground relied on by him did not fall under Article 449 (c) of the Code of Civil Procedure, namely the letter from the Department for the Execution of Judgments had become known to him before the pronouncement of the judgment of 18 July 2007. Moreover, the enforcement warrant referred to in the letter of 13 July 2007 did not concern the enforcement of the judgment of 25 July 2001 but the enforcement of a surety ordered by the first-instance court several months before the date on which the judgment of 25 July 2001 became enforceable. On 28 September 2007 Mr M. lodged an appeal on points of law against this decision.
11. On 24 October 2007 a Judge S.N. was appointed rapporteur in the case.
12. On 14 November 2007, a panel of three judges of the Supreme Court of Justice allowed Mr M.’s appeal, quashed the decision of 22 August 2007, granted Mr M.’s request for review and ordered a fresh examination of the case. The Supreme Court considered the letter of 13 July 2007 as a new document within the meaning of Article 449 (c) of the Civil Procedure Code and argued that Mr M. could have obtained it later than 13 July 2007. The court did not dispute the lower court’s findings to the effect that the enforcement warrant referred to in the letter of 13 July 2007 did not concern the enforcement of the judgment of 25 July 2001 but the enforcement of a surety ordered by the first-instance court. Judge S.N., appointed rapporteur on 24 October 2007, did not participate in the examination of the appeal.
13. The reopened proceedings ended with a final judgment of the Supreme Court of Justice of 28 October 2008 in favour of Mr M. resulting in the enforcement of the judgment of the Rascani District Court of 25 July 2001 against the applicant company.
14. The relevant provisions of the Code of Civil Procedure concerning the review of final judgments read as follows:
“A request for review shall be granted when:
(c) after a judgment has been adopted, new documents have been discovered which were withheld by one of the parties to the proceedings or which could not have been submitted to the court during the proceedings because of circumstances beyond the control of the interested party;
A request for review may be lodged:
...
(d) within three months from the date on which the document was discovered – in cases concerning Article 449 (c);”
The relevant provisions of the Law on the Supreme Court of Justice read:
“(1) The Civil and Administrative Division, and the Criminal and Commercial Divisions of the Supreme Court of Justice shall be headed by a president and a vice-president who shall have the following responsibilities:
(b) ... distribute cases among the members of the Division...”
The relevant part of the Code of Civil Procedure reads as follows:
“The participation of the judge rapporteur in the examination of an appeal on points of law is obligatory. If the rapporteur is unable to participate, a new rapporteur should be appointed not later than three days before the date of the examination of the appeal.”
The relevant part of the Law on Judicial Organisation reads:
“(1) The work of the judiciary must be carried out in accordance with the principle of random distribution of cases, except when a particular judge is prevented from participating in the examination of a case on objective grounds.”
(2) Cases assigned to one panel cannot be assigned to another panel except within the limits of the law.
VIOLATED_ARTICLES: 6
P1
VIOLATED_PARAGRAPHS: 6-1
P1-1


ITEMID: 001-23983
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: HORČÍKOVÁ v. THE CZECH REPUBLIC
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant, Mrs Dagmar Horčíková, is a Czech national who was born in 1959 and lives in Prague 6. She was represented before the Court by Mr O. Choděra, a lawyer practising in Prague 1. The respondent Government were represented by their Agent, Mr V. Schorm.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 28 January 1998 the applicant lodged an action with the Prague 5 District Court (obvodní soud) against a private entrepreneur, seeking the payment of CZK 29,858 (EUR 913.23). The action reached the court on 30 January 1998.
On 9 February 1998 the District Court invited the applicant to pay the court fees, which he did. The proof of this payment was notified to the District Court on 19 February 1998.
On 24 February 1998 the court requested an excerpt from the Register of Trades (živnostenský rejstřík) concerning the defendant's business activities, which was submitted on 10 March 1998.
On 20 March 1998 the applicant's claim was sent to the defendant.
On 10 April 1998 the Prague 5 District Court found that the defendant had his permanent address within the Prague 6 district and, on 4 August 1998, it transferred the action, for territorial reasons, to the Prague 6 District Court.
By a payment order (platební rozkaz) of 25 August 1998, the District Court ordered the defendant to pay the sum claimed by the applicant, including the default interest. According to the Government, the payment order was issued on 28 August 1998.
The defendant did not appeal and the order became effective on 23 September 1998.
On 9 November 1998 the applicant requested the execution of the payment order by means of the sale of the defendant's movable property. The applicant's request was notified to the District Court on 12 November 1998.
By letter of 18 November 1998, notified, according to the applicant, on 22 December 1998, the District Court invited the applicant's lawyer to submit his power of attorney and to pay the court fees. The power of attorney and proof of payment of the fees reached the court on 28 and 29 December 1998 respectively.
On 30 December 1998 the District Court ordered the execution of the payment order. On 11 January 1999 the order was notified to the applicant's lawyer who, on 29 March 1999, and upon the District Court's request, returned it for rectification of the date from which the default interest had to be paid to the applicant.
On 30 March 1999 the applicant's lawyer urged the court to continue with his client's proceedings.
On 6 April 1999 the court rectified the payment order which, on 9 April 1999, was served on the applicant.
On 8 June 1999, 9 May and 20 September 2000 a bailiff unsuccessfully attempted to serve the execution order on the defendant, and to draft a list of movable property belonging to him.
In the meantime, on 12 April and 13 September 2000, the applicant's lawyer had requested the court to enforce the execution order.
During the period from 29 September 2000 to 8 January 2001, the defendant repeatedly attended the District Court and paid the amount due in several instalments. On 7 February 2001 the District Court remitted the whole sum of CZK 61,000 (EUR 1,865.73) to the applicant. In the meantime, on 24 October 2000, the bailiff had again unsuccessfully tried to contact the defendant at his permanent address.
On 28 February 2001 the District Court remitted the defendant's outstanding payment of 1,811 CZK (EUR 55.39) to the applicant.
In his letter of 4 February 2003 addressed to the Registry, the applicant's lawyer stated, without providing further details, that his client had received the totality of the amount due in the summer of 2001.


ITEMID: 001-4864
LANGUAGEISOCODE: ENG
RESPONDENT: DNK
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: P.W. v. DENMARK
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant is a Danish national, born in 1956 and living in Hellerup, Denmark. He is represented before the Court by Olav Willadsen, a lawyer practising in Glostrup, Denmark.
Following the submission of his tax declaration for the years 1985 and 1986 investigations were carried out by the tax authorities in respect of certain income allegedly obtained in Belgium at a time when the applicant also obtained unemployment benefits in Denmark. It appears that the police were informed of the situation on 9 June 1988 whereas it does not appear from the file whether or to what extent the applicant was aware of any police investigations at that moment in time. In July 1990 it appears that the applicant was questioned by the police about his alleged employment by a Belgian company in 1985-86.
By indictment of 7 February 1991 (amended on 2 October 1992) the applicant was charged with fraud, pursuant to Section 279 of the Penal Code (straffeloven), for having wrongfully informed the Unemployment Fund for University Graduates (Akademikernes Arbejdsløshedskasse) that he was unemployed in the period from 1 August 1985 until 30 June 1986 although he was in fact employed in Belgium, thereby causing the Unemployment Fund a loss in the amount of 91,138.80 Danish Crowns (DKK). He was also charged with tax evasion, pursuant to Section 13, subsection 1, of the Tax Control Act (Skattekontrolloven), for not having informed the Municipality of Gentofte (Gentofte Kommune) of income obtained in Belgium in the years 1985 and 1986, thereby causing the tax authorities a loss in the amount of 72,960 DKK. Finally, he was charged with theft pursuant to Section 276 of the Penal Code for having stolen two plastic bags containing items with an assessed value totalling 2,761 DKK. The latter charge concerned an offence allegedly committed in September 1992.
On 25 July and 19 November 1991 the applicant requested the Chief of Police of Gentofte (Politimesteren i Gentofte) to undertake certain investigatory measures relating to his alleged contract of employment with the company in Belgium. The Chief of Police replied on 13 February 1992. On 2 March 1992 the applicant maintained that further investigations were necessary whereas it appears that the police considered that the case was ready for adjudication. Therefore, on 9 September 1992 the applicant requested the Criminal Court of Gentofte (Gentofte Kriminalret) to request the Belgian authorities to assist in clarifying whether any evidence existed that could substantiate the prosecution’s allegation that the applicant had been working in Belgium during the period in question. On 18 September and 26 October 1992 the Chief of Police submitted to the court that he found the requested measures to be without relevance to the case. It appears that a court session was held on 7 January 1993 following which the applicant requested an adjournment in order to have certain factual points clarified. The applicant submitted further requests for investigations by letter of 4 May 1993.
The trial subsequently commenced in the Criminal Court. The applicant, represented by counsel, and seven witnesses, including the witnesses E.V. and M.J., were heard. Following an evaluation of the available evidence the Criminal Court found the applicant guilty of the charges brought against him and by judgment of 21 July 1993 he was sentenced to 3 months’ imprisonment and a fine in the amount of 50,000 DKK. The prison sentence was suspended on the condition that no further criminal act would be committed by the applicant within a period of one year from delivery of judgment. The applicant was ordered to bear the costs of the case amounting to 127,500 DKK.
The applicant as well as the prosecution appealed against the judgment to the High Court of Eastern Denmark (Østre Landsret). During the proceedings before the High Court it appears that the applicant raised the issue of further investigative measures to be taken by the police.
On 24 May and 12 September 1994 the applicant submitted, inter alia, that a request be made to the European Court of Justice for a preliminary ruling pursuant to Article 177 of the European Union Treaty. The State Prosecutor of Zealand (Statsadvokaten for Sjælland
On 10 and 24 October 1994 the applicant requested the Ministry of Justice for leave to appeal against the High Court’s decision to the Supreme Court (Højesteret). On 10 November 1994 the prosecutor submitted the file and his observations to the Ministry. On 11 January 1995 the applicant submitted his observations and requested that the examination of his request for leave to appeal be adjourned until he had obtained a statement from an expert in Community Law.
On 9 February 1995 the Ministry fixed a time-limit of one month for the applicant’s final observations. On 6 March 1995 the applicant requested an extension of the time-limit in order to obtain the Danish copy of a judgment from the European Court of Justice. Accordingly, on 31 March 1995 the Ministry fixed a time-limit of 14 days for the applicant’s final observations. On 10 April 1995 the applicant submitted his observations, inter alia, referring to a judgment pronounced by the European Court of Justice on 14 February 1995. On 6 June 1995 the Ministry requested the prosecutor to comment on the applicant’s submissions. On 23 October 1995 the prosecutor’s comments were sent to the applicant who replied on 1 November 1995. The applicant submitted additional comments on 28 February 1996.
On 6 May 1996, on the basis of the above-mentioned observations, the Ministry rejected his request for leave to appeal against the decision of the High Court of 4 October 1994.
Thereafter the criminal case against the applicant continued in the High Court. On 29 November 1996 and 15 January 1997 the applicant requested the High Court to hear a number of witnesses, including E.V. and M.J. On 24 January 1997 the High Court allowed the hearing of E.V. and M.J. but dismissed the other evidence proposed as it found that this evidence was of no relevance for the determination of the case. The applicant applied for leave to appeal against this decision. However, on 11 February 1997 the Board of Leave to Appeal (Procesbevillingsnævnet) rejected the applicant’s request.
The criminal case was subsequently heard in the High Court. The applicant and five witnesses, including E.V. and M.J., were heard. On the basis of the evidence presented the High Court upheld the Criminal Court of Gentofte’s judgment on 12 February 1997. The applicant was ordered to bear the costs of the case before the High Court amounting to 87,700 DKK, including 70,000 DKK in counsel’s fees.
On 7 April 1997 the Board of Leave to Appeal rejected the applicant’s request for leave to appeal against the High Court’s judgment to the Supreme Court.


ITEMID: 001-93560
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: ROJE v. CROATIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: The applicant, Ms Atlantida Roje, is a Croatian national who was born in 1953 and lives in Split. She is represented before the Court by Mr O. Roje, 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 18 December 1992 the applicant brought a civil action against her employer, company D.-V. d.d., in the Split Municipal Court (Općinski sud u Splitu), seeking payment of her salary arrears and that the defendant be ordered to pay the mandatory contributions to the relevant funds. She also applied for an interim measure (privremena mjera) to secure the payment.
In the period before the entry into force of the Convention in respect of Croatia (5 November 1997), the court held several hearings, and a financial expert report was drawn up. The applicant was absolved from bearing the costs of proceedings.
On 19 June 1997 the applicant brought another civil action in the Split Municipal Court against the company D. d.d,, which was the sole shareholder of her employer. Her claim was the same as the one in the proceedings instituted in 1992.
On 25 March 1998 the Split Municipal Court joined these two sets of proceedings.
At a hearing held on 9 October 2001 the Split Municipal Court gave a judgment, accepting in part the applicant’s claim for the payment of her salary arrears. It declared the part of the applicant’s claim that the defendants be ordered to pay the mandatory contributions inadmissible for lack of jurisdiction. It also dismissed the applicant’s request for an interim measure.
On 10 October 2001 the defendants lodged an appeal against the above judgment. The applicant lodged an appeal on 12 October 2001, and the case-file was forwarded to the Split County Court (Županijski sud u Splitu).
On 20 November 2003 the Split Commercial Court (Trgovački sud u Splitu) opened bankruptcy proceedings against company D.-V. d.d. The applicant subsequently submitted her claims in the bankruptcy proceedings.
On 13 May 2004 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske), complaining about the length of civil proceedings pending before the Split County Court.
On 28 September 2006 the Split County Court stayed the proceedings against company D.-V. d.d., since the bankruptcy proceedings had meanwhile been opened against it. As to the claim against company D. d.d., it upheld the first-instance judgment as regards the applicant’s salary arrears, and quashed the decision on lack of jurisdiction as regards the remaining applicant’s claims. Thus the decision concerning the applicant’s salary arrears became final and as to the remainder of the applicant’s claim the case was remitted to the first-instance court.
Following the constitutional complaint by the applicant, on 25 October 2006 the Constitutional Court found a violation of the applicant’s right to a hearing within a reasonable time. It awarded the applicant a sum of 11,500 Croatian kunas (HRK), and also ordered the Split 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.
The Constitutional Court’s decision was published in the Official Gazette of 29 November 2006, and the six-month period expired on 29 May 2007.
On 17 March 2008 the applicant lodged a fresh complaint about the length of proceedings with the Split County Court. On 10 October 2008 that court found a violation of the applicant’s right to a hearing within a reasonable time for the period after the Constitutional court’s decision. It awarded the applicant a sum of HRK 4,500 and also ordered the Split Municipal Court to decide the case in the shortest time possible but no later than six months form the receipt of the case file at that court. The case file was returned to the Split Municipal Court on 21 November 2008.
At the hearing held on 27 April 2009 the applicant withdrew her claim and sought only the costs of the proceedings.
On 27 April 2009 the Split Municipal Court terminated the proceedings on the ground that the applicant had withdrawn her claim and awarded the applicant the costs of the proceedings. Thus the proceedings were finally concluded.