ITEMID: 001-81954
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF SAFYANNIKOVA v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Peer Lorenzen
TEXT: 4. The applicant was born in 1961 and lives in the town of Konotop, Sumy region.
5. On 15 October 1998 the Konotop Court, following the request of Mrs P.G., instituted criminal proceedings against the applicant on a charge of minor bodily injuries.
6. On 17 February 1999 the applicant brought similar counter-charges against Mrs P.G. and Mrs P. V.
7. On 17 November 2000 the Konotop Court acquitted the applicant, Mrs P.G. and Mrs P.V.
8. On 19 December 2000 the Sumy Regional Court (herinafter “the Regional Court”), upon Mrs P.G.'s cassation appeal, quashed this decision in part concerning the applicant's acquittal and remitted the case for a fresh consideration. The Regional Court
9. On 23 March 2001 the Konotop Court found the applicant guilty and sentenced her to six months' imprisonment and UAH 200 fine (suspended as time-barred).
10. On 26 April 2001 the Regional Court quashed this decision and remitted the case for a fresh consideration on the ground that the instance court erred in calculation of the statutory time-limit for the sanction.
11. On 13 June 2001 the Konotop Court found the applicant guilty and sentenced her to six months' imprisonment and UAH 200 fine (suspended as time-barred).
12. On 11 October 2001 the Sumy Regional Court of Appeal (hereinafter “the Court of Appeal”) upheld this decision.
13. On 19 February 2002 the Supreme Court quashed all previous decisions on the ground of serious procedural violations by the first instance court and remitted the case for a fresh consideration.
14. On 29 November 2002 the Konotop Court found the applicant guilty and sentenced her to 180 hours of public work (suspended under the Amnesty Act). It also ordered the applicant to pay Mrs P.G. UAH 977 in compensation for pecuniary and non-pecuniary damage.
15. On 18 February and 15 July 2003 the Court of Appeal and the Supreme Court, respectively, upheld this decision.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-23973
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: GÜNDÜZ v. TURKEY [Extracts]
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Müslüm Gündüz, is a Turkish national who was born in 1941 and lives in Elaziğ. He was represented before the Court by Mr A. Çiftçi, a lawyer practising in Ankara.
A report about the applicant, the leader of Tarikat Aczmendi (a community describing itself as an Islamic sect), entitled “They came with bombs, they will leave with bombs” (“Bombayla geldiler, bombayla gidecekler”) was published in the 17 and 24 June 1994 issues of Haftalık Taraf (“Weekly Viewpoint”), a weekly newspaper with radical Islamic leanings.
On 9 November 1994 the public prosecutor at the Fatih Criminal Court charged the applicant with incitement to commit an offence, within the meaning of Article 311 § 2 of the Criminal Code, and with insulting the memory of Atatürk, under Law no. 5816, which protects the memory of Atatürk.
In a judgment of 19 January 1998, the Criminal Court acquitted the applicant of insulting the memory of Atatürk, holding that his comments on Kemalism in the report in question amounted to criticism that could not be treated as an insult to the memory of Atatürk.
However, it sentenced him to four years' imprisonment for incitement to commit an offence. In support of that decision, it cited the following comments by the applicant that had appeared in the report:
“These people [moderate Islamic intellectuals] have no strength left ... Now they have come up with I.N. [an Islamic intellectual known for his moderate views]... Allah has blocked their water supply ... Only a fraction of Muslims, among those not engaged in the struggle, regard I.N. as someone important ... Now their teeth and nails have been ripped out, their hair has fallen out, they have been dethroned. They are still trying, but in vain, to preserve their greatness and, in doing so, provide a rather comic image of a monster ... like a hollow statue ... which, as soon as it is touched or set in motion (in the event of an attack), will show that it no longer has the strength to do anything ... Indeed, this has already been seen ... All that is needed now is for one brave man among the Muslims to plant a dagger in their soft underbelly and run them through twice with a bayonet to show just how empty they are. They no longer have anything else to sustain them. There is nothing else left ...”
The court held that the applicant's statement “All that is needed now is for one brave man among the Muslims to plant a dagger in their soft underbelly and run them through twice with a bayonet to show just how empty they are ... There is nothing else left ...” in the account of his opinions about I.N. amounted to public incitement to commit an offence. It considered that in the instant case the right to impart information and to engage in criticism could not be relied on and that publication of the statements in question had not served any public interest. In conclusion, it held that the legal rules governing the exercise of the right to impart information had not been complied with.
The applicant, submitting that his conviction had infringed his freedom of thought and expression, appealed on points of law on 24 April 1998.
On 29 December 1998 the Court of Cassation dismissed his appeal and upheld the judgment at first instance.
In the meantime, on 20 May 1997, the Istanbul National Security Court had sentenced the applicant to two years' imprisonment and a fine of 520,000 Turkish liras, holding that the comments made by him in the report in question (reference was made to other passages in the report, in which he had asserted that secularists and Kemalists were infidels and enemies of Islam and should do penance to save their lives) amounted to incitement to religious hatred. That decision was upheld by the Court of Cassation on 4 February 1998.
Article 311 § 2 of the Criminal Code provides:
“Public incitement to commit an offence
Anyone who publicly incites another to commit an offence shall be liable:
(1) ...
(2) to a penalty of between three months and three years' imprisonment, depending on the nature of the offence and the sentence it carries, whether long-term imprisonment or a shorter custodial sentence ...
Where incitement to commit an offence is done by means of mass communication, of whatever type – tape recordings, gramophone records, newspapers, press publications or other published material – by the circulation or distribution of printed papers or by the placing of placards or posters in public places, the terms of imprisonment to which convicted persons are liable shall be doubled ...”
Under the criminal law, while the ordinary criminal courts have jurisdiction in cases concerning public incitement to commit an offence, within the meaning of Article 311 of the Criminal Code, only the national security courts have jurisdiction to try the offences referred to in Article 312 of the Criminal Code, which prohibits incitement to religious hatred.
The relevant part of section 19(1) of the Execution of Sentences Act (Law no. 647 of 13 July 1965) provides:
“... persons who ... have been ordered to serve a custodial sentence shall be granted automatic parole when they have served half of their sentence, provided they have been of good conduct ...”


ITEMID: 001-58494
LANGUAGEISOCODE: ENG
RESPONDENT: ESP
BRANCH: CHAMBER
DATE: 2000
DOCNAME: CASE OF GARCÍA MANIBARDO v. SPAIN
IMPORTANCE: 1
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Costs and expenses award - Convention proceedings
JUDGES: Matti Pellonpää
TEXT: 8. On 10 October 1990 the applicant’s husband was killed in a road-traffic accident when a car and a lorry collided.
9. A criminal investigation (diligencias previas – no. 1394/90) was started before Amposta investigating judge no. 1. It appeared at first that a Mr P. was the driver of the car involved in the accident.
10. On 12 November 1990 Mr P.’s insurers paid the applicant 18,250,000 pesetas (ESP) in compensation for her husband’s death, independently of the criminal investigation that was under way. In her letter of acceptance dated that day, the applicant waived for herself and her four minor children the right to make any claim in civil or criminal proceedings in connection with the pending criminal investigation. She confirmed that waiver before Amposta investigating judge no. 1 on 22 November 1990.
11. In a decision (auto) of 10 June 1993 Amposta investigating judge no. 1 declared that there was no longer any need to pursue the pending investigation with regard to establishing any criminal liability.
12. By a decision (auto) of 30 November 1993 of Amposta investigating judge no. 1, Mr P.’s widow and children (who were minors) were awarded compensation to be paid by the insurers of the lorry that had collided with the car. Mr P. had also been killed in the accident and was believed to have been the driver of the car.
13. Mrs P., the widow of the presumed driver of the car, considered the sum she had received inadequate and that it was not her husband who had been driving the car involved in the collision, but the applicant’s. On 7 March 1994 she lodged a written application for damages on behalf of herself and her two minor children with Amposta district judge no. 1. Her action, which had to be conducted in accordance with the rules for oral proceedings (juicio verbal), was brought jointly against the heirs of the applicant’s husband, the heirs of the owner of the car who was also killed in the accident and the insurers of the vehicle.
14. On 23 June 1994 the applicant, who was acting in her own name and on behalf of her minor children and was represented by a lawyer who accepted her instructions “on the basis that he was acting as if he had been appointed by the court”, orally contested the claim against her by reference to the “facts and reasons contained in the annexed document[s]”. In those documents, the applicant replied in writing to the claimant’s arguments and applied for legal aid. She referred to her domestic situation, disclosed her personal income, which consisted solely of her widow’s pension and the income of her children who were now without a father, and stated that she owned a home that she had purchased with the compensation received as a result of her husband’s death. The documents were referred to in the record of the hearing of 5 July 1994 in the following terms: “the documents annexed to [the applicant’s] memorial in reply to the claim are considered to have been produced”. The insurers of the car also contested the claim and lodged written documents containing detailed submissions.
15. In a judgment of 20 December 1994 Amposta district judge no. 1 found that the driver of the car involved in the collision had been the applicant’s husband, not the claimant’s, and ordered the former’s heirs and the vehicle insurers jointly and severally, or, in the alternative, the heirs of the owner of the vehicle, to pay Mrs P. and her two children the sum of ESP 18,000,000.
16. All the parties appealed against that decision. In a decision (providencia) of 16 January 1995, Amposta district judge no. 1 gave the applicant permission to appeal on condition that she deposited the amount awarded in the judgment at first instance, in accordance with supplemental section 1(4) of Basic Law no. 3/1989 of 21 June 1989 updating the Criminal Code.
17. On 25 February 1995 the applicant lodged an application with Amposta district judge no. 1 to have that decision set aside (reposición) on the ground that it was impossible for her to deposit the sum requested by the Audiencia Provincial. On 5 April 1995 the application was declared admissible in accordance with the Constitutional Court’s case-law on the subject (judgment no. 84/1992 of 28 May 1992), and the applicant was exempted from the obligation to deposit the amount concerned prior to lodging the appeal. The district judge took into account the applicant’s domestic and financial circumstances “as set out in the court file” in reaching his decision.
18. In a judgment of 2 September 1996 the Tarragona Audiencia Provincial declared the appeal lodged by the applicant’s opponent partly admissible, upheld the judgment of the district judge and declared the applicant’s appeal inadmissible on the ground that she had not deposited the requisite sum or shown that she had tried to find other means – such as a bank guarantee as suggested by the Constitutional Court in its judgment no. 30/1994 of 27 January 1994 – of complying with that obligation. As regards the district judge’s ruling that the appeal was admissible and his decision to exempt the applicant from the obligation to deposit the monies, the Audiencia Provincial explained that, since the appeal had been examined even though it should have been declared inadmissible, the grounds for a finding of inadmissibility had become grounds for dismissing the appeal.
19. On 23 December 1996 the applicant lodged an amparo appeal with the Constitutional Court. She relied on her right to a fair hearing and on the non-discrimination principle arguing that no deposit had been demanded from her opponent despite her cross-appeal. The applicant added that she had applied for legal aid at first instance and that her financial and domestic circumstances had prevented her from depositing the amount required to lodge her appeal.
20. Meanwhile, in connection with the enforcement of the Tarragona Audiencia Provincial’s judgment, the Amposta district judge had, by a decision (providencia) of 30 December 1996, ordered the seizure of the assets of the applicant and the vehicle insurers as security for the payment of the compensation awarded to Mrs P.
21. On 7 January 1997 the applicant wrote to Amposta district judge no. 1 to request that her application for legal aid made on 23 June 1994 in her memorial in reply to Mrs P.’s claim before the district judge be examined and a stay of execution pending delivery of the decision of the Constitutional Court in the amparo appeal lodged on 23 December 1996. On 16 January 1997 the district judge decided to examine the application for legal aid.
22. In a decision of 10 March 1997 the Constitutional Court dismissed the applicant’s amparo appeal on the ground that it had no constitutional basis. It held that the decision declaring the applicant’s appeal inadmissible had been properly reasoned, that it answered the applicant’s legal arguments reasonably and had been delivered after adversarial proceedings with full procedural guarantees. With regard to the alleged violation of the non-discrimination principle, the Constitutional Court held that the position of a person held liable civilly and the position of the party who had won the action were not comparable.
23. The applicant was granted legal aid by a decision of Amposta district judge no. 1 of 15 April 1997. No appeal was lodged against that decision.
24. The provisions of the Code of Civil Procedure relating to legal aid (before the entry into force of Law no. 1/1996 of 10 January 1996) read as follows:
“Application for recognition of the right to take part in proceedings free of charge shall be made to the judge or court that has or will have jurisdiction over the proceedings or the voluntary judicial act in respect of which the application is made ...”
“The application shall be deemed ancillary to the main proceedings and shall be examined separately under the rules specific to oral proceedings; the other parties and State Counsel shall be heard.”
“The application and related procedure shall not entail a stay of the main proceedings, unless all parties so request ...”
“Anyone granted legal aid under a statutory provision or by a court order shall be entitled to:
...
(3) exemption from the obligation to deposit the sums required on lodging an appeal or application for judicial review. ...”
“A grant of legal aid for specific proceedings shall cover all steps and appeals related to those proceedings, but shall not be used in any other proceedings.”
“Anyone entitled to free legal representation may be represented by a barrister or solicitor of his own choice if the barrister or solicitor agrees to act, failing which counsel shall be appointed by the court.”
“The hearing shall take place on the appointed day before the judge and the registrar.
The parties shall set out their claims and anything they consider relevant to their case in turn. Thereafter, relevant evidence may be produced and the documentary evidence shall be placed in the court file.
...
The parties may choose a representative, who must be a practising barrister or a practising solicitor, to speak on their behalf. The representative may attend the hearing.
...”
25. Transitional provision no. 1 of Law no. 1/1996 of 10 January 1996 provides:
“Applications for legal aid made before Law no. 1/1996 enters into force shall be made in accordance with the legislation in force when the application is made.”
26. Subsection (4) of supplemental section 1 of Basic Law no. 3/1989 of 21 June 1989 provides:
“Anyone who is ordered to pay compensation and wishes to lodge an appeal against a decision concluding proceedings to which this provision relates must show that the amount that he or she has been ordered to pay together with accrued interest and expenses has been deposited ...”
27. In its judgment no. 84/1992 of 28 May 1992, the Constitutional Court noted that while appellants should be given an opportunity to remedy an omission, the payment of the deposit before the appeal was lodged was not a mere condition of form, but an essential prerequisite for the lodging of an appeal. However, the statutory requirement to deposit the monies could, in certain cases, infringe litigants’ rights to effective protection by the courts of first instance and appeal thereby creating situations in which the person ordered to make payment was prevented from appealing and would thus be defenceless. The Constitutional Court referred to the need for the financial circumstances of the person against whom the order had been made to be taken into account, the judge being required to examine each case and if necessary to decline to apply a statutory provision which in another case would be mandatory.
28. In its judgment no. 30/1994 of 27 January 1994 in a case on labour law, the Constitutional Court said that an appeal would be inadmissible unless the obligation to deposit monies was complied with “... except where the applicant was in receipt of legal aid, in which case he or she could satisfy the obligation with a bank guarantee instead ...”.
29. In its judgment no. 187/1992 of 28 May 1992, delivered in answer to a constitutionality question raised by the Murcia Audiencia Provincial, the Constitutional Court likewise referred to situations in which a non legally aided applicant was subject to bankruptcy proceedings or was insolvent.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-91057
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF ŞÜKRAN YILDIZ v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Article 5 - Right to liberty and security;Violation of Article 6 - Right to a fair trial
JUDGES: Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 4. The applicant was born in 1980 and lives in Diyarbakır.
5. On 22 September 1996 the applicant, who was sixteen years old at the time, was taken into custody by policemen from the Diyarbakır Security Directorate on suspicion of membership of an illegal armed organisation, namely the PKK (the Kurdistan Workers’ Party). In her police statements dated 6 and 8 October 1996 respectively, the applicant accepted the charges against her. During her interrogations, the applicant did not have the assistance of a lawyer.
6. On 22 October 1996 the applicant was brought before the Diyarbakır public prosecutor and subsequently before the investigating judge. She was interrogated in the absence of a lawyer by the public prosecutor and the investigating judge respectively and denied the allegations against her. Taking into account the seriousness of the allegations, the judge ordered that the applicant be placed in detention on remand. The applicant was then allowed to have access to a lawyer.
7. By an indictment dated 3 December 1996, the public prosecutor at the Diyarbakır State Security Court initiated criminal proceedings against the applicant and nine other accused. He accused the applicant of being a member of the PKK and accordingly called for her to be sentenced pursuant to Article 168 § 2 of the Criminal Code.
8. The trial commenced before the Diyarbakır State Security Court. In the subsequent twenty hearings, the court refused to release the applicant on account of the nature of the alleged offence and the state of evidence.
9. On 2 June 1999 the Diyarbakır State Security Court concluded that the applicant was a member of the PKK and accordingly sentenced her to eight years and four months’ imprisonment pursuant to Article 168 § 2 of the Criminal Code.
10. On 20 December 1999 the Court of Cassation quashed the judgment of the first-instance court.
11. On 10 August 2001 the applicant was released pending trial.
12. On 9 April 2002 the court rendered its judgment and sentenced the applicant to eight years and four months’ imprisonment pursuant to Article 168 § 2 of the Criminal Code. In convicting the applicant, the State Security Court had particular regard to the applicant’s police statements.
13. On 7 October 2002 the Court of Cassation upheld the judgment of the Diyarbakır State Security Court.
VIOLATED_ARTICLES: 5
6


ITEMID: 001-97880
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF M.A.K. AND R.K. v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: Reminder inadmissible;Violation of Art. 8;Violation of Art. 13;Pecuniary and non-pecuniary damage - award
JUDGES: Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza
TEXT: 5. The first applicant's daughter, who is the second applicant, was born on 6 March 1989.
6. On 9 September 1997 the first applicant took the second applicant to see their general practitioner because he and his wife were concerned about what appeared to be bruising on her legs. A clotting test was carried out but it showed no abnormality.
7. On 25 February 1998 the first applicant took the second applicant back to the general practitioner because her swimming teacher had expressed concern about the marks on her legs. The first applicant asked for a referral to hospital and an appointment was made for 17 March 1998 with Dr W., a consultant paediatrician.
8. On 15 March 1998 the second applicant hurt herself in the genital area while riding her bike. She complained to her mother of hurting between her legs. Her mother did not examine her and she did not tell the first applicant of the incident.
9. On 17 March 1998 the first applicant took the second applicant to the appointment with Dr W. Dr W. said that the bruising did not appear to be a skin disease and admitted the second applicant to hospital for further examination. The first applicant had to go to work but before leaving the hospital he told Dr W. that his wife would arrive soon and there should be no further examination or tests until she came and gave any necessary consent.
10. When the first applicant's wife arrived one hour later, she found that a sample of the second applicant's blood had been taken for testing, photographs had been taken of her legs and the local authority had been notified. A social worker informed her that Dr W. thought the second applicant had been abused. The first applicant's wife then gave consent for a further examination. Dr W. and a police surgeon examined the second applicant's legs and genitalia. The second applicant was given no explanation for the examinations and she was not questioned about the allegations of abuse. Following the examination, Dr W. informed the first applicant's wife that the second applicant had been sexually abused and that it had probably been going on for eight months on account of the bruising. The social worker interviewed the second applicant generally, but asked no direct questions about sexual abuse. No record was made of the interview. During the interview the social workers told the first applicant's wife to ask the first applicant and their eldest son to move out of the family home until further investigations had taken place. At this point she recalled that the second applicant had “hurt between her legs” while on her bicycle. She informed the social worker, who said that she would pass the information on to the doctor.
11. At 17.30 that evening, when the first applicant and his wife attempted to visit the second applicant on the ward, a nurse told them that there were orders that the first applicant should not be allowed to see her. This exchange was witnessed by other people on the ward. News was passed through the community and reached acquaintances in India. The following day, hospital staff were correctly informed that there could be no restrictions on visitors. The first applicant was thereafter permitted to visit the second applicant in hospital, although all visits were supervised on account of the suspicion that she had been sexually abused.
12. On 18 March 1998 the first applicant's wife informed Dr W. that the second applicant had “hurt between her legs” on her bicycle. Dr W. told her that there was no doubt the second applicant had been sexually abused and advised her that if she did not accept it, there was a risk that her other children would be taken into care.
13. On the same day two social workers visited the applicants' home. The applicant's wife asked for a second opinion on the cause of the bruising but the social workers told her that they saw no point in obtaining a second opinion. They did not, however, insist that the first applicant should leave the family home; instead it was arranged that the first applicant's wife should sleep in the room with her daughters.
14. On 21 March 1998 the first applicant's wife noticed that the second applicant had marks on her hands. An appointment was made for the second applicant to see a dermatologist.
15. On 24 March 1998 the dermatologist reported that the marks on the second applicant's legs were caused by vasculitis.
16. On 27 March 1998 the second applicant was diagnosed with Schamberg's disease, a rare condition of the capillaries which is manifested by the eruption of purple patches on the skin. She was discharged from hospital. Dr W. wrote a letter to the first applicant and his wife which stated that there was insufficient evidence to say that the second applicant had been sexually abused and that the first applicant should no longer be considered to be implicated in the sexual or physical abuse of his daughter.
17. The first applicant and his wife were unhappy with what had happened and made a formal complaint to the NHS Trust. The Trust set up an Independent Review Panel with two Assessors who were consultant paediatricians experienced in child abuse cases. The Panel report concluded that Dr W. had been right to admit the second applicant to hospital but found that she had acted too quickly in carrying out examinations. The report further noted that examinations and photographs should not have been taken while no parent was present; that while Dr W. was not to blame for misdiagnosing the bruises, she should have monitored them and obtained a dermatologist's opinion as a matter of urgency; that the first applicant should have been properly consulted and interviewed; and that Dr W. had attached far too much importance to the bruising, neglecting other relevant information available from the first applicant, his wife and the family doctor. Finally, the report noted that Dr W. had, without convincing explanation, failed to write to the first applicant with an explanation and an apology.
18. On 9 March 2001 the applicants brought proceedings in negligence against the local authority and hospital trust claiming compensation for personal injury and financial loss. Both were legally aided.
19. On 22 November 2002 the County Court judge struck out the claims, finding that no duty of care arose between the local authority and the first applicant and that the hospital but not the local authority had owed a duty of care to the second applicant. The applicants appealed. Their appeals were joined to those of a number of other appellants.
20. On 31 July 2003 the Court of Appeal granted the second applicant's appeal and allowed her claim to proceed against the local authority as well as the hospital. The Legal Services Commission, however, withdrew the second applicant's legal aid certificate on the basis that it was no longer reasonable for her to receive legal aid because the likely costs were disproportionate to the value of the claim. On 4 April 2006 the second applicant's appeal against the withdrawal was dismissed by an independent Funding Review Committee, which agreed that the costs of pursuing the claim considerably outweighed any likely award of damages.
21. On 31 July 2003 the Court of Appeal dismissed the first applicant's appeal together with the appeals of the other appellants. The first applicant and the other appellants were granted leave to appeal to the House of Lords.
22. The House of Lords gave judgment in 2005 (see JD v East Berkshire Community Health NHS Trust and Ors [2005] 2 AC 373). The question before the House of Lords in JD was whether the parent of a minor child falsely and negligently said to have abused or harmed the child could recover common law damages for negligence against a doctor or social worker who, discharging professional functions, made the false and negligent statement, if the suffering of psychiatric injury by the parent was a foreseeable result of making it and such injury had in fact been suffered by the parent. The House of Lords concluded (Lord Bingham of Cornhill dissenting) that there were cogent reasons of public policy for holding that no common law duty of care should be owed to the parents and it would not be just or reasonable to impose such a duty.
23. Section 8 of the Family Reform Act 1969 provides as follows:
“Consent by persons over 16 to surgical, medical and dental treatment
(1) The consent of a minor who has attained the age of sixteen years to any surgical, medical or dental treatment which, in the absence of consent, would constitute a trespass to his person, shall be as effective as it would be if he were of full age; and where a minor has by virtue of this section given an effective consent to any treatment it shall not be necessary to obtain any consent for it from his parent or guardian.
(2) In this section “surgical, medical or dental treatment” includes any procedure undertaken for the purposes of diagnosis, and this section applies to any procedure (including, in particular, the administration of an anaesthetic) which is ancillary to any treatment as it applies to that treatment.
(3) Nothing in this section shall be construed as making ineffective any consent which would have been effective if this section had not been enacted.”
24. In relation to children under the age of sixteen, the House of Lords has held that such minors have the right to consent on their own behalf to a variety of medical procedures, as long as they fully understand what is involved. Until the child achieves the capacity to consent, however, the parental right to make the decision continues save only in exceptional circumstances (see Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112).
25. The General Medical Council (“GMC”) guidelines for doctors in relation to obtaining consent for the treatment of children provide as follows:
“23. You must assess a child's capacity to decide whether to consent to or refuse proposed investigation or treatment before you provide it. In general, a competent child will be able to understand the nature, purpose and possible consequences of the proposed investigation or treatment, as well as the consequences of non-treatment. Your assessment must take account of the relevant laws or legal precedents in this area. You should bear in mind that:
At age 16 a young person can be treated as an adult and can be presumed to have capacity to decide;
Under age 16 children may have capacity to decide, depending on their ability to understand what is involved;
Where a competent child refuses treatment, a person with parental responsibility may authorise investigation or treatment which is in the child's best interests. The position is different in Scotland, where those with parental responsibility cannot authorise procedures a competent child has refused. Legal advice maybe helpful on how to deal with such cases.
Where a child under 16 years old is not competent to give or withhold their informed consent, a person with parental responsibility may authorise investigations or treatment which are in the child's best interests. This person may also refuse any intervention, where they consider that refusal to be in the child's best interests, but you are not bound by such a refusal and may seek a ruling from the court. In an emergency where you consider that it is in the child's best interests to proceed, you may treat the child, provided it is limited to that treatment which is reasonably required in that emergency.
26. The statutory framework for civil legal aid is contained within Parts IV and I of the 1988 Act.
27. A civil Legal Aid Certificate can only be issued where the case has sufficient merit to justify public funding. With limited exceptions, every application for civil legal aid is subject to two statutory tests: first, section 15(2) of the 1988 Act requires that the applicant have reasonable grounds for taking, defending or being a party to the proceedings (“the legal merits test”); secondly, section 15(3)(a) of the 1988 Act provides that civil legal aid might be refused if is unreasonable that the applicant should be granted legal aid (“the reasonableness test”).
28. Factors relevant to determining the reasonableness of a grant of legal aid include, inter alia, a cost benefit analysis, the importance of the case to the applicant, and whether the case is in the public interest.
29. Once an applicant is granted legal aid, the merits are kept under review throughout the case. Under the Civil Legal Aid (General) Regulations 1989, the Legal Aid Board has the power to discharge or revoke a Legal Aid Certificate.
30. If a certificate is discharged or revoked, the assisted person may appeal to the Area Committee. If they remain dissatisfied with the decision, they may seek to have the Area Committee's decision quashed by the High Court by way of judicial review. It is possible to appeal against a decision of the High Court on judicial review to the Court of Appeal and (with leave) to the House of Lords.
31. The Council of Europe's Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine (opened to signature at Oviedo on 4 April 1997) contains the following principles regarding consent:
“Chapter II – Consent
Article 5 – General rule
An intervention in the health field may only be carried out after the person concerned has given free and informed consent to it.
This person shall beforehand be given appropriate information as to the purpose and nature of the intervention as well as on its consequences and risks.
The person concerned may freely withdraw consent at any time.
Article 6 – Protection of persons not able to consent
1. Subject to Articles 17 and 20 below, an intervention may only be carried out on a person who does not have the capacity to consent, for his or her direct benefit.
2. Where, according to law, a minor does not have the capacity to consent to an intervention, the intervention may only be carried out with the authorisation of his or her representative or an authority or a person or body provided for by law.
The opinion of the minor shall be taken into consideration as an increasingly determining factor in proportion to his or her age and degree of maturity.
3. Where, according to law, an adult does not have the capacity to consent to an intervention because of a mental disability, a disease or for similar reasons, the intervention may only be carried out with the authorisation of his or her representative or an authority or a person or body provided for by law.
The individual concerned shall as far as possible take part in the authorisation procedure.
4. The representative, the authority, the person or the body mentioned in paragraphs 2 and 3 above shall be given, under the same conditions, the information referred to in Article 5.
5. The authorisation referred to in paragraphs 2 and 3 above may be withdrawn at any time in the best interests of the person concerned.
Article 8 – Emergency situation
When because of an emergency situation the appropriate consent cannot be obtained, any medically necessary intervention may be carried out immediately for the benefit of the health of the individual concerned.”
VIOLATED_ARTICLES: 13
8


ITEMID: 001-79633
LANGUAGEISOCODE: ENG
RESPONDENT: NOR
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: MJELDE v. NORWAY
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Mr Per Harald Mjelde, is a Norwegian national who was born in 1965 and lives in Oslo. He was represented before the Court by Mr V. Strømme, a lawyer practising in Oslo. The Norwegian Government (“the Government”) were represented by their Agent, Mrs F. Platou Amble, Attorney at the Attorney General’s Office (Civil Affairs).
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant was the Chief Executive Officer and a member of the Governing Board of the company Næringslivets Innkjøpsorganisasjon Ltd, which was taken into bankruptcy in 1996. In this context, on 25 November 1997, the Oslo Probate and Bankruptcy Court (skifterett) inter alia found (i) that the applicant had failed to operate advance tax deduction through a separate bank account and had been grossly negligent in this respect, in breach of sections 4, 5, 5A and 51 of the Tax Payment Act 1952 (skattebetalingsloven); (ii) that there was reasonable ground for suspecting the applicant of having taken up a loan in the company in breach of sections 12-10 and 17-1 last sub-section of the Limited Liability Companies Act 1997 (aksjeselskapsloven) and (iii) embezzlement of the estate in breach of Articles 281 and 283A of the Penal Code. The Probate and Bankruptcy Court found reasonable ground for suspicion that such criminal acts as mentioned in section 142(1) of the Bankruptcy Act 1984 (konkursloven) had occurred. Moreover, under section 142(2) it found that his business conduct had been inappropriate to such a degree as to make him unsuited to establish a new limited liability company or to take part in such a company. Therefore, under section 142(1) and (2), the court ordered that he be disqualified (konkurskarantene) for a period of 2 years from establishing or taking on responsibilities for the governing board of such a company. In addition, under section 142(4) it extended the order to prohibiting the applicant from continuing existing responsibilities of this nature.
The Probate and Bankruptcy Court’s judgment contained the following reasoning:
“Pursuant to section 142(1) item 1, see sixth sub-section, item 2, of the Bankruptcy Act, a disqualification order may be imposed on [the applicant] as day-to-day manager of the company if there is ‘reasonable ground’ for suspecting him of a criminal act in connection with the bankruptcy or the activities that led to insolvency. Further, a disqualification order may be imposed pursuant to section 142 (1) item 2 ... if there is reason to presume that, on the ground because of unsound business conduct, the person is unfit to establish a new company, etc. There are sufficient grounds to impose a disqualification order if one of the conditions is fulfilled.
The taxation legislation contains provisions requiring separate tax deduction accounts in order to ensure that companies do not make use of funds that belong to the public authorities. Under sections 4, 5 and 5a of the Tax Payment Act, the amounts that are to be paid into tax deduction accounts are the part of taxable remuneration which is not to be retained by persons liable to pay tax (i.e. employees, etc), but which is to be paid as advance tax deductions. The employer has the responsibility for collecting advance tax deductions from employees. In principle, advance tax deductions should not go through a company’s operating accounts, but be paid directly into a tax deduction account, see section 11 of the Tax Payment Act. It is therefore insufficient to argue that there was adequate liquidity in the company both before and after the bankruptcy. The point is not whether the company was in a position to meet its obligations, but whether the amounts in question had in fact been set aside. In this connection, it is important to note that the company never had any formal right to make use of the advance tax deductions. Any exemption from criminal liability would have to be based on the grounds that the amounts that were not set aside were in fact paid at the correct time, see section 51, subsection 3 of the Tax Payment Act. This is not the case here.
The requirements for strict criminal liability under section 51 of the Tax Payment Act must be regarded as being fulfilled. With respect to whether [the applicant]’s actions fulfil the subjective requirements for liability, section 51 of the Tax Payment Act lays down intent or gross negligence. It is established that [the applicant], as general manager, was grossly negligent in not ensuring that the payments in question were actually made. The fact that he delegated the task of deducting tax payments in advance does not exempt him from criminal liability.
As regards the withdrawal of funds for personal use, the court finds that there is reasonable ground for suspecting that loans were raised in contravention of section 12-10 of the Limited Liability Companies Act. It has been claimed that the loans in question were within the framework of the company’s free equity, but the court cannot see that any security has been provided. This is an offence that is subject to penal sanctions, see section 17, last sub-section, of the Limited Liability Companies Act. The loans were advanced to [the applicant], and the requirements for both strict and subjective criminal liability must be considered to have been fulfilled.
Furthermore, the court finds that there is just cause for suspecting criminal withholding of assets from the estate pursuant to Article 281 of the Penal Code. Under Article 281, an attempt to withhold assets is sufficient to incur criminal liability. The court finds that there is reasonable ground for suspecting [the applicant] of attempting to withhold assets from the estate, since it is a fact that the computer equipment has not been transferred to the estate as required. Here too, the requirements for both strict and subjective liability are found to be fulfilled.
As regards the question of embezzlement of funds paid to the company by Stavanger Energi, the court notes that this has been reported to the police by their letter of 6 November 1997. This letter indicates that the police consider there to be reasonable ground for suspecting [the applicant] of criminal acts.
As regards whether the company operated at the creditors’ expense and how this relates to Article 283 A of the Penal Code, the court finds that in retrospect, it can be established that the company did operate at the creditors’ expense. However, the court does not have sufficient information to state with certainty whether there is reasonable ground for suspecting that the requirements for subjective criminal liability for violation of Article 283 A of the Penal Code are fulfilled. However, the court has found that there is reasonable ground for suspecting a number of other offences, and therefore does not consider it necessary to make a final decision on this question in order to determine whether or not a disqualification order should be imposed. Another question is whether this type of short trading in electricity can be considered to be sound business practice. In this connection, we cannot set such strict standards for documentation of [the applicant]’s subjective view of the matter. The court will return to this question below.
The court finds that there is reasonable ground for suspecting [the applicant] of offences such as are mentioned in section 142(1) item 1, of the Bankruptcy Act. It finds that the balance of probability is that [the applicant] is liable to punishment for one or more of the acts to which the Administrators has called attention. Thus, the conditions for imposing a disqualification order on [the applicant] pursuant to section 142(1) item 1, of the Bankruptcy Act are fulfilled.
The court finds that business conduct in this case has been so unsound that [the applicant] must be considered unfit to form or take part in the management of a new company, see section 142 (1) item 2, of the Bankruptcy Act. Particular importance is attached in this respect to the general disregard shown for companies legislation. This applies in particular to the provisions of the Limited Liability Companies Act relating to withdrawal of funds for personal use and borrowing from one’s own company. Furthermore, a number of the financial transactions made in the company’s name appear to have been carried out in [the applicant]’s personal interest. These include the purchase of a number of vehicles not conventionally used by a limited liability company of this type. For example, expensive motorcycles, sports cars and pleasure boats were purchased. In connection with an evaluation of business conduct, it is of little importance whether these were intended for use by [the applicant] himself or by his employees. In the court’s opinion, such transactions do not give a more favourable impression of the way the company was managed.
Despite the way the power market developed in 1996, [the applicant] allowed Næringslivets Innkjøpsorganisasjon to continue trading in electricity, even though the company did not have contracts for purchases of electricity to cover its sales. The company did not have sufficient funds for these transactions. The transactions thus became speculation at the purchaser’s risk, and in the final analysis at the purchaser’s expense. The company sold goods that it knew or should have known could not be delivered to the purchaser if electricity prices continued to rise. Short trading of this kind is acceptable if the company is in a strong enough financial position, which was not the case here. If the company does not have sufficient funds, its customers incur losses because they have to go out on the market and buy electricity at a higher price. In the court’s opinion, this cannot be in accordance with sound business practice.
[The applicant] has a history of several bankruptcies and is involved in several bankruptcy proceedings at present. He can therefore be described as a serial bankrupt, so that he belongs to the category which disqualification is specifically intended to deal with. The court has found no circumstances indicating that it would be unreasonable to impose a disqualification order. In the assessment of reasonableness it is important that the conditions of both item 1 and item 2 of section 142 (1) of the Bankruptcy Act are deemed to be fulfilled.
Nor can the court see that disqualification would be particularly unreasonable for [the applicant] on the grounds that he considers himself to be an entrepreneur and claims that disqualification would deprive him of the right to work. A disqualification order does not prohibit a person from working. [The applicant] could take up employment in a company or establish a company with unlimited liability to its creditors. The reason for issuing a disqualification order is that [the applicant] is considered unfit to establish a limited liability company.
Since the conditions of section 142(2) item 1, are fulfilled, the court further finds that, pursuant to section 142(4) of the Bankruptcy Act, [the applicant] should be removed from any existing offices in the management of companies, and he is therefore obliged to withdraw from any positions such as those mentioned in section 142 (3) and (5) of the Bankruptcy Act.”
This was the third time a disqualification order had been imposed on the applicant, who had been involved in several bankruptcies in the past.
On 4 March 1998 the Borgarting High Court (lagmannsrett) rejected an appeal by the applicant against the Probate and Bankruptcy Court’s judgment and upheld the latter’s findings under section 142(1) and (2) and, apparently also under (4), of the Bankruptcy Act. The High Court stated:
“The High Court does not find it established that the Probate and Bankruptcy Court has based its decision on erroneous facts or that the decision suffered from other errors that could lead to it being quashed.
Against the background of what emerges from the Administrators’ report, the High Court agrees with the Probate and Bankruptcy Court that there is reasonable ground for suspecting [the applicant] of breach of several penal provisions. It relates to breach of Articles 283A(2) item 2 and 281 of the Penal Code, section 51 of the Tax Payment Act and the taking up of loan in breach of section 12-10, see 17-1 last sub-section, the Limited Liability Companies Act. The conditions for disqualification under section 142(1) item 1 are therefore present, as the criminal offences refer to the bankruptcy and the activities that led to insolvency.
The High Court further agrees with the Probate and Bankruptcy Court that the management of the company at issue can be characterised as so indefensible that [the applicant] must be deemed unsuited to form a new liability company and take part in such a company, with the meaning of section 142 (1) item 2.
Having regard to the debtor’s conduct and the circumstances as a whole, the High Court finds that it seems reasonable, under section 142 (2), to subject him to a disqualification order. Reference is made to the Probate and Bankruptcy Court’s extensive reasoning, with which the High Court agrees in the main, and to the fact that [the applicant], according to the Administrators’ report, has been insolvent in also connection with a number of bankruptcies in the past and has also previously been subjected to disqualification.
Therefore the Probate and Bankruptcy Court’s decision is upheld.”
The applicant did not appeal against the above judgment by the High Court which became final.
Subsequently, on 8 September 1999, the applicant was charged on four counts of aggravated embezzlement inter alia in breach of Articles 255, 256, 281 and 288 of the Penal Code; section 2(2) of the Value Added Tax (VAT) Act 1969 (merverdiavgiftsloven); and section 51 of the Tax Payment Act. On 16 November 2000 he was in addition charged of aggravated breach of confidence (grovt utroskap) under Articles 275 and 276 of the Penal Code.
On 27 April 2001, the Oslo City Court (byrett) acquitted the applicant of all but one of the charges mentioned above, namely a charge of aggravated embezzlement, and sentenced him to 2 years’ imprisonment and to loss for 5 years of his right to run a business or to occupy a leading position in a company or be a member of a company board (Article 29(2) of the Penal Code).
On appeal by both the prosecution and the defence, the High Court, by a judgment of 11 October 2002, increased the sentence to 3 years, finding the applicant guilty also on the additional count of aggravated breach of confidence.
In his appeal to the Supreme Court the applicant requested, firstly, that the case be dismissed (avvist), arguing with reference to Article 4 of Protocol No. 7 to the Convention that the disqualification order barred the subsequent prosecution in relation to the same matters. Secondly, the applicant appealed against his conviction for aggravated embezzlement under Articles 255 and 256 of the Penal Code, challenging the High Court’s interpretation of the law and reasoning.
On 23 September 2003 the Supreme Court rejected both of his appeal grounds. In so far as the submission under Article 4 of Protocol No. 7 was concerned the Supreme Court, referring to the reasoning in its judgment pronounced in a similar case on the same date, that the imposition of the disqualification order under sections 142(1), (2) and (4) did not bar subsequent prosecution and conviction.
The parallel judgment became the subject of an application (no. 12277/04) lodged under the Convention by Mr Yngvar Storbråten against Norway, which is being dealt with simultaneously with the present case. An English translation of the Supreme Court’s reasoning is reproduced in the Court’s decision in the case of Mr Storbråten, delivered on the same date as the present decision.
In so far as relevant, section 142 of the Debt Reorganisation and Bankruptcy Act of 8 June 1984 No. 58 (the Bankruptcy Act) read:
Section 142 -Conditions for imposing a disqualification order
“If a debtor’s estate is the subject of bankruptcy proceedings, the district court may impose a disqualification order on the debtor if
1) there is reasonable ground for suspecting the person concerned of a criminal act in connection with the bankruptcy or the activities that led to insolvency, or
2) if it must be presumed that for reasons of unsound business conduct, the person in question is unfit to establish a new company or to serve as a director or general manager (managing director) of such a company.
In taking a decision on this matter, importance shall be attached to whether, having regard to the debtor’s conduct and the circumstances as a whole, it appears reasonable to impose a disqualification order.
The imposition of a disqualification order means that, for a period of two years from the opening of bankruptcy proceedings, the debtor may not establish such a company as mentioned in the fifth sub-section, or undertake the office or de facto exercise the powers of a member or deputy member of a board of directors or managing director of such a company. The district court may decide that the two-year period shall start from the date when the court takes its decision.
In cases mentioned in the first sub-section, item 1, the district court may decide that disqualification shall also entail that the debtor shall be removed from any such offices as mentioned in the third sub-section held in such companies as mentioned in the fifth sub-section.
The term company in sub-sections 3 and 4 means a limited liability company, a public limited liability company, a branch office of a foreign company, a business foundation, a housing construction cooperative, a housing co-operative, a company aimed at promoting its members’ consumer interests (consumer co-operative), a mutual insurance company or a State company.”
For a summary of the legislative history of the provisions on disqualification under Norwegian law, reference is made to paragraphs 21 to 31 of the Supreme Court’s judgment quoted in the above-mentioned decision in the parallel Storbråten case.
The Government provided some additional information, inter alia what is summarised here below.
In the individual assessment of reasonableness to be carried out under section 142(2), account was to be had to such factors as the cause of the bankruptcy, the debtor’s conduct during the bankruptcy proceedings and the time element. In the event of a significant and unwarranted delay from the opening of the bankruptcy proceedings until the submission of a request for a disqualification order, the court might conclude that it would be unreasonable to impose a disqualification order.
In the preparatory works to the Bankruptcy Act 1984, the Ministry of Justice had stressed that the rules would make it possible to stop persons who repeatedly were involved in limited liability companies which went bankrupt, and where there was reason to suspect improper business conduct. It had also been emphasised that disqualification orders should function as a supplement to loss of entitlement (rettighetstap), a form of punishment pursuant to Article 29 of the Penal Code. In this context, the Ministry had pointed to the advantages of the fact that a disqualification order could be imposed shortly after the opening of the bankruptcy proceedings, whilst it normally would take longer to investigate and prosecute possible criminal offences. The possibility of swift action was necessary to achieve the preventive purpose of the measure.
The duration of disqualification period, ordinarily two years, could be extended if the public prosecutor in a criminal case had requested or was contemplating requesting the trial court to sentence the person in question to a loss of entitlement pursuant to the Article 29 of the Penal Code. The disqualification period could then be extended until the court had decided the criminal case.
The competent court could remit a disqualification order if any of the parties so requested and there was relevant new information. If a person subjected to a disqualification order was later acquitted in criminal proceedings for an offence which constituted the basis for a disqualification order, or further investigation showed that no such criminal offence had been committed, the public prosecutor was to request that the disqualification order be lifted (Norsk Retstidende 2002-789, Appeals Leave Committee of the Supreme Court).
A disqualification order could be imposed by a court of first instance (tingretten) or by the probate and bankruptcy courts (skifteretten). Such a measure was usually taken on the basis of written proceedings. However, the parties had the right to request an oral hearing. In his or her report to the probate and bankruptcy court, the liquidator was to provide information on whether, in his or her opinion, there were circumstances suggesting that a disqualification order should be imposed. Both the bankruptcy estate (represented by the liquidator) and the prosecuting authority had a right to intervene as parties in the proceedings concerning the disqualification order. The opposing party would be the debtor, board member etc. against whom the order would apply. It was rare that the prosecution or the bankruptcy estate intervened as a party to the proceedings. The court’s decision would, accordingly, normally be taken only on the basis of the information and recommendation in the liquidator’s report, and the information and objections provided by the defendant.
Under section 143A of the Bankruptcy Act, a failure to comply with a disqualification order was a criminal offence punishable by up to four months’ imprisonment and/or fines.


ITEMID: 001-89934
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: HAROVSCHI v. MOLDOVA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
TEXT: The applicant, Mr Victor Harovschi, is a Moldovan national who was born in 1969 and lives in Chişinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr V. Grosu.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant worked for a non-governmental organisation in 2002 and 2003. In May 2003 he was dismissed from his job because he had failed to perform his duties properly and had not observed work discipline. He was allegedly not paid compensation for his unused annual leave, nor his salary for September 2002.
The applicant initiated court proceedings asking for his reinstatement, the issuing of his workbook (carnet de muncă) and payment of his salary for the entire period during which he had not obtained his workbook, a recognition of the fact that his contract with the employer had been concluded for an indefinite period and that his one-year contract had been unlawfully concluded, the payment of his salary for the entire period of his involuntary absence from work and the payment of compensation for unused annual leave.
On 30 October 2003 the Râşcani District Court rejected the applicant’s claims, finding that he had been correctly dismissed due to his failure to perform his duties properly, as confirmed by the relevant materials and witness statements. Witnesses testified in court about his use of the internet for personal amusement during working hours and his personal conflicts with the administration as a result of matters such as his improper use of the internet, his manner of dressing and his attitude towards colleagues. His dismissal was moreover based expressly on a provision in his contract to that effect. The court also found it established that the applicant had not submitted his workbook to the employer when he started work and therefore could not request it back upon his dismissal. Finally, the court found that the entire sum due to him on dismissal had been paid.
The applicant appealed. He argued, inter alia, that the lower court had violated procedural rules when it refused to request documents which were in the possession of the other party, the relevance of which he had explained in his request. In addition, his contract should have been considered as concluded for an indefinite time. The court also refused to award him his salary for September 2002 even though he had not received it. His claim for compensation for unused annual leave had also been unlawfully rejected. He challenged both the power of the executive director of his employer to dismiss him and the basis for his dismissal, as the legal requirement to give at least two disciplinary warnings before dismissal had not been complied with and his conduct could not have contravened internal regulations since there were none. He finally contested the finding of the court regarding his failure to submit his workbook to the employer, relying on the fact that one of his former colleagues testified in court that she had not been asked to submit a workbook either and, accordingly, had not submitted one, and that employers were obliged by law to keep workbooks for staff. He again asked the court to request a list of documents from his former employer and explained what matters could be proved by examining those documents.
On 24 December 2003 the Chişinău Court of Appeal rejected his appeal. The court found that the applicant had been lawfully dismissed since he had systematically failed to perform his duties. In addition, his contract had expired on 1 November 2003.
In his appeal in cassation the applicant essentially repeated the arguments he had made on appeal, annexing a letter from the Labour Inspection which had found, on 19 December 2003, that his former employer had failed to observe labour laws by not keeping workbooks for all its employees, including that of the applicant, by failing to adopt orders for hiring personnel or to adopt internal rules of conduct and a plan for annual leave. The Labour Inspection found that the applicant had not been paid compensation for unused annual leave, in the amount of 930.88 Moldovan lei (MDL). He also relied on previous judgments of the Supreme Court of Justice in which, in his opinion, the court had decided in favour of persons in similar situations.
On 12 May 2004 the Supreme Court of Justice rejected his appeal in cassation, finding that he had been dismissed in accordance with the law and as a result of his systematic failure to observe the work regulations, having been sanctioned on three separate occasions before his dismissal. The applicant did not provide evidence of the alleged unlawfulness of those sanctions. Moreover, it was clear from the case file that he had been paid in full and that he had not submitted his workbook to the employer.
On 6 October 2006 the present application was communicated to the respondent Government.
On 1 November 2006 the applicant lodged with the Supreme Court of Justice a request for the re-opening of the proceedings.
On 5 January 2007 the Supreme Court of Justice accepted that request and ordered a full re-hearing of the case.
On 28 February 2008 the Chişinău Court of Appeal quashed the first-instance court judgment of 30 October 2003 and adopted a new one, rejecting the applicant’s claims after having found that he had started working for his employer on 1 October 2002, when he concluded a contract for one year, and that he had been dismissed for repeatedly violating work discipline and bringing the work of the entire office to a standstill for a day due to his abusive use of the internet. However, the court partly accepted his claim for compensation for unused leave and awarded him MDL 752.22 in this connection. The court also ordered the employer to issue the applicant with a new-type workbook. It rejected the applicant’s claim for payment of his salary for the period during which the employer had not issued him the workbook, finding that no evidence had been submitted of his inability to find other employment in the absence of the new-type workbook, given in particular that he was still in the possession of his old workbook, which could be used in seeking new employment.
On 6 June 2008 a panel of the Supreme Court of Justice found the appeal in cassation lodged by the parties inadmissible. The parties were not summoned to the hearing.
Article 440 of the Code of Civil Procedure reads as follows:
“Article 440. Procedure for examining the admissibility of an appeal in cassation
... (2) Admissibility of an appeal in cassation shall be decided without summoning the parties”