ITEMID: 001-60940
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF ÇETİN AND OTHERS v. TURKEY [Extracts]
IMPORTANCE: 1
CONCLUSION: Preliminary objection rejected (non exhaustion);Violation of Art. 10;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
JUDGES: Gaukur Jörundsson;Jean-Paul Costa
TEXT: 9. The applicants are Turkish nationals and live in Diyarbakir. At the material time, they worked as journalists on Ülkede Gündem, a Turkish-language daily newspaper based in Istanbul. Publication of the newspaper ceased on 24 October 1998 and it was replaced initially by Özgür Bakis and subsequently, on 27 April 2000, by another daily newspaper, 2 Binde Yeni Gündem. That newspaper was replaced on 31 May 2001 by a weekly periodical called Yedinci Gündem.
10. At the material time one of the applicants, Mr Çetin, an independent journalist, wrote a column entitled “Notes from Diyarbakir” (Diyarbakir'dan Notlar), which was published on Tuesdays in Ülkede Gündem. Mr Bakaç was Ülkede Gündem's representative in Diyarbakir. He currently works as a press officer for the Diyarbakir Urban District Council.
11. As for the other applicants, Mr Bagir is now the mayor of Lice, Mr Kaya is a lawyer and Mr Sahin and Mr Kiliç both teach in schools in eastern Turkey. Mr Sünbül continues to work as a journalist with the weekly publication 7. Gündem, while Mr Dag currently works as a press officer for Kayapinar Town Council.
12. The main point at issue in the present case is a ban that was imposed on 1 December 1997 by the governor of the state of emergency region on the distribution of Ülkede Gündem in that region.
13. According to the applicants, the distribution of Ülkede Gündem was impeded by the security forces in the period from September to November 1997, and the governor of the state of emergency region subsequently imposed a ban on its publication and distribution in the region where the state of emergency had been declared (see paragraph 24 below). On 13 November 1997 the proprietor of Ülkede Gündem sent a letter to the Ministry of the Interior informing it of the disruption caused to the distribution of the newspaper and demanding an end to these unlawful acts. He also sought compensation for the loss sustained.
14. On 19 November 1997 the governor of the state of emergency region wrote to the proprietor of Ülkede Gündem to say that his office was not responsible for the acts mentioned in the letter. He enclosed the seizure orders that had been made by the relevant authorities.
15. The Government have produced to the Court seventy-two warrants issued by judges of the Istanbul National Security Court for the seizure of various issues of the newspaper in the months of September, November and December 1997.
16. On 4 November 1997 Mr Bakaç and Mr Bagir lodged a criminal complaint with the Diyarbakir public prosecutor's office because of the alleged disruption to the distribution of the newspaper.
17. On 25 November 1997 the public prosecutor's office ruled that it had no power to deal with the complaint and referred it to the Diyarbakir Administrative Council under the Prosecution of Civil Servants Act.
18. On 5 February 1998 the Diyarbakir Administrative Council held that there was no case to answer in view of the seizure warrants that had been issued by the Istanbul National Security Court. Its decision was upheld by the Supreme Administrative Court on 3 March 2000.
19. On 1 December 1997 the governor of the state of emergency region imposed a ban on the publication and distribution of Ülkede Gündem in that region.
20. On 4 December 1997 the Diyarbakir Security Directorate wrote to Mr Bakaç, in his capacity as Ülkede Gündem's representative in Diyarbakir, informing him of the ban. Its letter read as follows:
“Regard being had to Directive no. 1344 issued by the governor's office of the state of emergency region on 1 December 1997,
With effect from 1 December 1997 the publication and distribution of the daily newspaper Ülkede Gündem in the provinces in which a state of emergency has been declared under the aforementioned directive (Diyarbakir, Hakkari, Siirt, Sirnak, Tunceli and Van) shall be prohibited.”
21. Likewise, on 5 December 1997 the Tunceli Security Directorate wrote a letter to the company responsible for distributing the newspaper, Birlesik Basim Dagitim A.S., based in Adana, in the following terms:
“Regard being had to Directive no. 1344 issued by the governor's office of the state of emergency region on 1 December 1997,
With effect from 1 December 1997 the publication and distribution of the Istanbul daily newspaper Ülkede Gündem in the provinces in which a state of emergency has been declared under the aforementioned directive (Diyarbakir, Hakkari, Siirt, Sirnak, Tunceli and Van) shall be prohibited, pursuant to Article 1 of Legislative Decree no. 430 and section 11(e) of the State of Emergency Act.”
22. On 7 May 1999 the governor of the state of emergency region imposed a ban pursuant to Article 11 (e) of Legislative Decree no. 285 on the publication and distribution of Özgür Bakis, the daily newspaper that had replaced Ülkede Gündem.
Similarly, on 1 June 2000 he issued an order prohibiting the publication and distribution of the daily newspaper 2 Binde Yeni Gündem in the state of emergency region.
Lastly, on 27 June 2001 the weekly publication Yedinci Gündem, which had replaced 2 Binde Yeni Gündem, met the same fate, with a ban being imposed on its publication and distribution in the region.
23. The applicants have produced a notice dated June 2000 which shows that at different times the governor of the state of emergency region imposed bans on the publication and distribution of seventeen periodicals, including Ülkede Gündem, Özgür Bakis and 2 Binde Yeni Gündem.
24. The governor's office of the state of emergency region was set up with special powers after the state of siege was officially declared to be over on 19 July 1987 by Legislative Decree no. 285 of 10 July 1987. A state of emergency was thus decreed in the provinces of Bingöl, Diyarbakir, Elazig, Hakkari, Mardin, Siirt, Tunceli and Van. On 19 March 1994 the state of emergency was extended to the province of Bitlis, but lifted in the province of Elazig. It was declared to be over in the provinces of Batman, Bingöl and Bitlis on 2 October 1997, in the province of Van on 30 July 2000 and in the provinces of Tunceli and Hakkari on 1 August 2002. In July 2002 it was extended by four months in the provinces of Diyarbakir and Sirnak.
25. The powers of the governor of the state of emergency region (Olaganüstü Hal Bölge Valisi) are set out in the State of Emergency Act (Law no. 2935 of 25 October 1983) and various legislative decrees that were issued after the state of emergency was declared (Legislative Decrees nos. 313, 387, 413, 421, 425, 426, 427, 428, 430, 432 and 481).
26. Section 11(e) of the State Emergency Act reads as follows:
“... If a state of emergency is decreed, the following measures may be imposed with a view to maintaining general security, safety and public order and to preventing any escalation in the violence ...:
...
(e) An order prohibiting, either absolutely or without prior permission, the editing, dissemination, publication or distribution of newspapers, reviews, brochures, pamphlets, posters or any similar publications, or the publication or distribution of any such [publications] which have been printed or disseminated outside the state of emergency region ...”
27. Article 1 (a) of Legislative Decree no. 430 provides:
“The printing, dissemination, publication or distribution of books, reviews, newspapers, brochures, posters or other similar publications liable seriously to undermine public order in the region, to cause agitation among the local population or to obstruct the security forces in the course of their duties by giving a false account of operations being conducted in the region shall be prohibited, either absolutely or without the prior permission of the governor of the region to which the state of emergency applies or the governors of the provinces concerned. [Likewise,] the publication or distribution of [any publication of the same type] that has been printed and published outside the state of emergency region shall be prohibited, either absolutely or without the prior permission of the governor of the region to which the state of emergency applies or the governors of the provinces concerned ...”
28. The relevant part of Article 148 § 1 of the Constitution provides:
“... There shall be no right of appeal to the Constitutional Court to contest the form or substance of legislative decrees issued during a state of emergency, a state of siege or in wartime.”
29. Article 7 of Legislative Decree no. 285, as amended by Legislative Decree no. 425 of 9 May 1990, precludes any application in the administrative courts to have an administrative act performed pursuant to Legislative Decree no. 285 set aside.
30. Article 8 of Legislative Decree no. 430 reads as follows:
“No criminal, financial or civil liability may be asserted against ... the governor of the state of emergency region or provincial governors in that region in respect of decisions taken, or acts performed, by them in the exercise of the powers conferred on them by this legislative decree, and no application shall be made to any judicial authority to that end. This shall be without prejudice to the rights of individuals to claim reparation from the State for damage which they have been caused without justification [sebepsiz].”
31. The Constitutional Court has reviewed the constitutionality of Article 7 of Legislative Decree no. 285, as amended by Legislative Decree no. 425 of 9 May 1990, in a judgment of 10 January 1991, which was published in the Official Gazette on 5 March 1992. It stated:
“It is not possible to reconcile that provision [which precludes any judicial scrutiny of acts performed by the governor of the state of emergency region] with the concept of the rule of law ... The system of government when a state of emergency has been declared is not an arbitrary one that escapes all judicial scrutiny. There can be no doubt that individual and regulatory acts performed by the competent authorities while the state of emergency continues must be subject to judicial review. Contravention of this principle is inconceivable in countries run by democratic regimes and founded on freedom. However, the impugned provision is contained in a legislative decree that cannot be the subject of constitutional review ... Consequently, the application for an order quashing that provision must be dismissed as being incompatible ratione materiae [yetkisizlik] ...”
32. As regards Article 8 of Legislative Decree no. 430, in two judgments delivered on 3 July 1991 and 26 May 1992 (published in the Official Gazette on 8 March 1992 and 18 December 1993 respectively), the Constitutional Court followed that decision in dismissing as incompatible ratione materiae applications for orders quashing the relevant provisions.
VIOLATED_ARTICLES: 10


ITEMID: 001-98627
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: HICKEY v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
TEXT: The applicants, Mr Michael Joseph Hickey and Vincent James Hickey, are British nationals who were born in 1961 and 1954 respectively and live in Birmingham. They were represented before the Court by Ms S. Labinjoh, a lawyer practising in London.
The two applicants, together with James Robinson, were convicted on 9 November 1979 of murdering Carl Bridgewater, a thirteen year-old newspaper boy, during the course of a burglary at Yew Tree Farm, in the West Midlands.
At the time of conviction, the first applicant was just under eighteen years old. He had accrued fifteen previous convictions, most of which were minor, between 1976 and 1978. He had not previously served a custodial sentence. For the Bridgewater murder, he was sentenced to detention at Her Majesty's Pleasure, along with eight years' detention for the robbery at Yew Tree Farm and two sentences of twelve years' detention, to be served concurrently, for two armed robberies, at Chapel Hill Farm and a Tesco supermarket, to which he had earlier pleaded guilty.
The second applicant, who was twenty-five years old at the time of conviction, was sentenced to life imprisonment for the Bridgewater murder, and given a concurrent sentence of ten years for the aggravated burglary at Yew Tree Farm. He was also given twelve months for an offence of deception. The second applicant also had a previous criminal record, with seventeen convictions, mostly minor, accrued between 1970 and 1978. He had served a short custodial sentence as a juvenile, and been given a suspended sentence of twelve months' imprisonment as an adult.
James Robinson, the man convicted alongside the two applicants, was forty-five years old at the time and had a more serious criminal record, having been convicted of various offences between 1954 and 1958 for which he received suspended sentences, and of various offences of dishonesty including burglary in 1966, for which he received a three-year prison sentence. James Robinson was sentenced to life imprisonment for the Bridgewater murder; ten years' imprisonment for the aggravated burglary at Yew Tree Farm; and fifteen years concurrently for each of the Chapel Hill Farm and Tesco armed robberies.
The applicants and James Robinson sought to challenge their conviction of the murder and aggravated burglary at Yew Tree Farm, of which they maintained they were innocent. However, leave to appeal to the Court of Appeal was refused in December 1981 and, upon reference of their cases to the Court of Appeal by the Secretary of State, their appeals were dismissed in March 1989. The Secretary of State again referred their cases to the Court of Appeal and, on this occasion, serious irregularities in the conduct of the investigation and the trial emerged. The prosecution accepted that the convictions had been fundamentally flawed. All three were released on unconditional bail in February 1997 and their appeals were allowed, and their convictions quashed, on 30 July 1997. The Secretary of State decided that the applicants and James Robinson were entitled to compensation.
The assessment of compensation for James Robinson was conducted by Sir David Calcutt QC on 7 June 2000. The assessment was made on the basis that Mr Robinson had spent ten years wrongfully imprisoned, allowing for the time that he would have served in any event for the other robberies. The assessor made a deduction from the award of non-pecuniary losses to reflect Mr Robinson's previous criminality, but this deduction was “comparatively modest” - namely 10% - reflecting the fact that his previous offences had all been non-violent. The assessor awarded GBP 115,000 in basic damages and GBP 172,000 in aggravated damages. The aggravated damages were stated as being to take account of the conduct of the police in investigating and prosecuting the offences, which had involved forgery, deceit and violence, and the constant intimidation and violence to which Mr Robinson had been subjected in prison as a result of being labelled a “child killer”.
The assessment of compensation for the applicants was conducted by Lord Brennan QC on 15 June 2002. The assessor concluded that Michael Hickey had been wrongfully detained for twelve years and ten months, having regard to the time that he would have served in any event for the other robberies. With regard to the appropriate deduction to be made from the non-pecuniary losses to reflect previous criminality, the assessor noted that the applicant had been just under eighteen years of age at the time he was convicted, but that he had already accrued five convictions for offences of dishonesty, burglary and driving offences, for which he had variously received fines and supervision orders. He had also, more significantly, been convicted of two robberies with a firearm at the same time as his wrongful conviction. Finding that there was no way in which such serious convictions could be ignored, he made a deduction of 20% to reflect the first applicant's past criminality.
The assessor went on to find that conviction and imprisonment had had consequences of the gravest kind for Michael Hickey, not least because his imprisonment had resulted in serious psychiatric illness, which was likely to endure for the remainder of his life. He awarded the first applicant a total of GBP 250,000 for non-pecuniary loss, which was broken down into GBP 140,000 for all factors other than psychiatric illness; GBP 35,000 as a moderate uplift for aggravating factors of the case; and GBP 75,000 for psychiatric illness. The first applicant was also awarded GBP 770,000 in respect of pecuniary loss. This incorporated a figure to reflect his past loss of earnings, from which a deduction of 25% was made to reflect saved living expenses. The assessor noted that a deduction for saved living expenses had not been made from Mr Robinson's award; however, he considered that each case had to be decided on its own merits at the time of assessment. It was correct that living expenses should be deducted, since common law principles prohibited double compensation, and the award for loss of earnings should reflect the facts that living expenses would normally be paid for out of earnings, and that the first applicant had not incurred such expenses by reason of his imprisonment.
The assessor found that Vincent Hickey had been wrongfully detained for thirteen years and eight months, bearing in mind the time he would have served for the Chapel Hill robbery, to which he had pleaded not guilty but had later admitted, and which had been ordered to lie on his file. He was older than the first applicant at the time of his conviction and had a more significant offending history, consisting of seven previous convictions for thirteen offences including dishonesty; burglary; assault; and driving whilst disqualified. For these offences he had variously received fines, supervision orders and a suspended prison sentence. The Chapel Hill robbery had therefore marked the culmination of significant criminal behaviour, and the assessor deducted 25% from his non-pecuniary award to reflect this.
The assessor found that the second applicant had had to endure harsh conditions and treatment, which had included sexual assault, in prison due to being perceived as a child murderer. As a result of such treatment, he had suffered depression and post-traumatic stress disorder. He had become addicted to heroin whilst in prison, an addiction which continued after his release until he underwent rehabilitation treatment. The assessor awarded the second applicant GBP 190,000 in respect of non-pecuniary loss, of which GBP 50,000 was for past and present psychiatric injury, and to which the 25% deduction for past criminality applied, making a total for non-pecuniary loss of GBP 144, 936. The assessor did not specify whether any part of the award reflected aggravating factors. A total of GBP 361,284.20 was awarded for pecuniary loss, incorporating a deduction of 25% from the loss of earnings to reflect saved living expenses. The reasoning behind the deduction was identical to that in the first applicant's assessment.
In response to representations by the applicants'
The applicants sought judicial review of Lord Brennan's decisions and their applications were heard in the High Court in March 2003. Insofar as is relevant to the complaints pursued by the applicants before the Court, the High Court held that Lord Brennan had, by relying on common law principles derived from personal injury cases, which were not analogous to the cases in hand, misdirected himself in law in deducting a proportion from the award of pecuniary losses relating to loss of earnings for each applicant in order to reflect saved living expenses. The High Court also found that the deductions made by Lord Brennan to reflect each applicant's past criminality were unobjectionable in themselves. The only grievance that each applicant could have was in comparing the deduction applied to them with the smaller deduction applied by Sir David Calcutt QC to James Robinson. The assessor was not bound by a principle of consistency and could depart from the findings of his predecessor if he considered that he had good reason to do so. Since the applicants could not have a justified sense of grievance about their own awards, viewed alone, their challenge on this ground failed.
The applicants appealed against the High Court's failure to quash the assessment on the grounds of the inconsistent deduction for past criminality; the assessor appealed against the quashing of the part of his assessment which dealt with saved living expenses. The cross appeals were disposed of by the Court of Appeal on 29 July 2004. With regard to the assessor's appeal, Auld LJ, who gave the lead speech, held that Lord Brennan had correctly regarded the deduction he imposed, on its facts and in accordance with the law, as being necessary to avoid compensating the applicants for a loss which they had not sustained. The deduction had been taken from the pecuniary loss award for loss of earnings, and had had no impact on the non-pecuniary loss award, which took account of the applicants' suffering as a result of imprisonment. Longmore LJ concurred, adding that the cost of basic living expenses had not been set off because the applicants had received a benefit; rather it had been set off because the applicants had not incurred expenses that they would have incurred had they been at liberty and in gainful employment. Given that the overall assessment separated the awards for loss of liberty – which was addressed under non-pecuniary loss – and for loss of earnings – which was addressed under pecuniary loss – and that the former was entirely appropriate, it was inevitable that the latter should take account of saved living expenses. Gage LJ also concurred. Lord Brennan's appeal on this ground was therefore allowed.
As regards the alleged inconsistency involving the deductions made for past criminality, Auld LJ stated that judicial consistency was always desirable, but not always achievable where decisions were taken by different decision-makers. Lord Brennan had reached a reasonable figure for the deduction, and had given his reasons for departing from the approach of his predecessor. The situation was akin to differences in sentencing. There the test for overturning a sentence was whether the person felt a justified sense of grievance. Here, the applicants had been subjected to deductions which, viewed on their own and objectively, were reasonable. They did not therefore have a justified sense of grievance. Auld LJ and Gage LJ concurred. The applicant's appeal on this ground was therefore dismissed.
The applicants then appealed both issues to the House of Lords. Judgment was handed down on 14 March 2007, and the applicants' appeals on each ground were dismissed by a majority of 4:1.
Lord Bingham, who gave the lead speech for the majority, stated with regard to the first issue that:
“It is in my opinion inapt and understandably offensive to the appellants to regard or treat their imprisonment as a benefit conferred on them by the state.”
However, to award the full amount of lost earnings without making any deduction for living expenses would, in reality, leave the applicants better off than if they had actually earned the money. The deduction led to the applicants being put in the position that they would have been in had they not been imprisoned and therefore they were compensated for their actual loss. Lords Scott and Carswell agreed with Lord Bingham's analysis. Lord Brown also agreed, adding that the deduction was plainly a reflection of the basic expenses of living in freedom, rather than a credit impermissibly claimed by the State to repay a supposed benefit.
However, Lord Rodger disagreed on this ground of appeal, holding that it was both unattractive and an infringement of constitutional principle to regard the deduction of living expenses from the applicants' awards as being necessary to avoid double compensation. The Government was not permitted to charge prisoners for their board and lodging, as previous case-law dealing with prisoners' earnings in prison had established. The case-law in respect of personal injury, which had been relied on by both sides throughout the instant proceedings, if properly understood, held that the normal expenditure of a plaintiff on food and accommodation was of no concern to the defendant. Deductions were admittedly made in situations where it was necessary to avoid double compensation; that is, where an award for loss of earnings and an award for future care were both given. Since the applicants in this case had no claim for future care, no deduction was necessary to avoid double compensation. The cases regarding personal injury also differed from that of the applicants in an important way: whereas in personal injury claims the wrong had been done and the issue was how to treat their maintenance at public expense thereafter, the applicants in this case had been subjected to an ongoing wrong. They were being wronged whilst being maintained at public expense. Lord Rodger stated:
“Justice, reasonableness and public policy dictate that no allowance should be made for so-called savings which the applicants were supposedly making while they were actually enduring the appalling wrong for which they are to be compensated.”
In reality, it did not matter whether the cost of board and lodging was treated as a benefit that the applicants had received or as a deduction from their compensation for loss of earnings; the result was that they were penalised for the time spent in prison, which was the very thing that their awards were designed to compensate them for. Lord Rodger would therefore have upheld the applicants' appeal on this ground, while dismissing their appeal on the ground of the deduction for past criminality.
With regard to this second ground of appeal, Lord Bingham held that while it was generally desirable that decision makers, whether judicial or administrative, should act in a broadly consistent manner, the assessor who dealt with the applicants' claims for compensation had not been bound to follow the previous decision dealing with their co-accused if he considered it to be erroneous. The matter of the appropriate deduction to be made for past criminality was a highly judgmental matter, and the assessor's deductions, in themselves, were not impugned. The applicants' only basis for complaint was the lesser deduction applied to their co-accused and this was not sufficient to give rise to a justified sense of grievance.
Lords Brown and Rodger agreed with Lord Bingham on this ground of appeal; Lord Brown adding that, while at first blush the inconsistency between the deductions imposed by the different assessors appeared unfair to the applicants, in fact it had been done for good reason. Lord Brennan had either found his predecessor's deduction to be irrationally low, or the two assessors had taken a different approach to the overall calculation of non-pecuniary loss; either way, the applicants' appeal on this ground could not succeed. Lord Carswell also agreed that this ground of appeal should fail; however, he expressed some doubts as to the sense of deducting a proportion for past criminality from the total award for non-pecuniary loss. He considered that it would make more sense to take the claimants' criminal history into account when determining each of the various heads of loss than to apply a flat percentage deduction afterwards. However, the inconsistency in the deductions applied did not vitiate the assessor's conclusions; consistency was desirable but it had sometimes to yield to the larger imperative of delivering justice in the particular case.
Lord Scott, on the other hand, dissented on this ground. He found that the deductions for past criminality should not have been applied to the portion of non-pecuniary loss which related to the conduct of the authorities who prosecuted the crime. There was no reason that a hardened criminal would suffer less than a person of previously good character in being unfairly convicted of a crime that he did not commit. Nor should the deduction for past criminality be applied to a claimant who had never been imprisoned before. The suffering inherent in being incarcerated for the first time would be just as abject, whether or not the person had a previous criminal record. Lord Scott considered that the claimant's history should be taken into account when calculating the non-pecuniary harm done to them, and that no further deduction was therefore necessary. On the issue of the consistency of the applicants' awards with their co-accused, he found that compensating a person for wrongful conviction was designed to ameliorate an existing and justified sense of grievance; therefore, if the award of compensation was not perceived as fair, then the aim of addressing a grievance had not been properly met. The deduction applied to the applicants did not appear to be fair, given the significantly smaller deduction applied to Mr Robinson, and his significantly more serious criminal record. The applicants' appeal on this ground should therefore be upheld.
The right to compensation is contained in section 133 of the Criminal Justice Act 1988, which so far as relevant provides:
Subject to subsection (2) below, when a person has been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice, the Secretary of State shall pay compensation for the miscarriage of justice to the person who has suffered punishment as a result of such conviction or, if he is dead, to his personal representatives, unless the non-disclosure of the unknown fact was wholly or partly attributable to the person convicted.
No payment of compensation under this section shall be made unless an application for such compensation has been made to the Secretary of State.
The question whether there is a right to compensation under this section shall be determined by the Secretary of State.
If the Secretary of State determines that there is a right to such compensation, the amount of the compensation shall be assessed by an assessor appointed by the Secretary of State.
The Criminal Appeal Act 1995, by section 28, added a new subsection to follow subsection (4), above. The new subsection provides:
(4A) In assessing so much of any compensation payable under this section to or in respect of a person as is attributable to suffering, harm to reputation or similar damage, the assessor shall have regard in particular to:
the seriousness of the offence of which the person was convicted and the severity of the punishment resulting from the conviction;
the conduct of the investigation and prosecution of the offence; and
any other convictions of the person and any punishment resulting from them.
Section 133 of the Criminal Justice Act 1988 was enacted in order to give effect to Article 14(6) of the International Covenant on Civil and Political Rights, to which the United Kingdom is a party. Article 14(6) provides:
When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.
This Article closely resembles Article 3 of Protocol No. 7, which the United Kingdom has not ratified.


ITEMID: 001-76894
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF WHITE v. SWEDEN
IMPORTANCE: 2
CONCLUSION: No violation of Art. 8
TEXT: 4. The applicant lives in Beira, Mozambique.
5. On 29 and 30 September and 1 October 1996, the two main evening newspapers in Sweden, Expressen and Aftonbladet, published a series of articles in which various criminal offences were ascribed to the applicant, including an assertion that he had murdered Olof Palme, the Swedish Prime Minister, in 1986. As part of the publication of this information, the newspapers also reported statements of individuals who rejected the allegations made against the applicant. Moreover, on 1 October, Expressen published an interview with the applicant, in which he denied any involvement in the alleged offences.
6. On 23 September 1998 the applicant brought a private prosecution against the newspapers through their legally responsible editors (ansvariga utgivare). He claimed that the editors were responsible for gross defamation, or alternatively defamation of a normal degree, under chapter 7, section 4, subsection 14 of the Freedom of the Press Act (Tryckfrihets-förordningen), and chapter 5, section 2 (or section 1) of the Criminal Code (Brottsbalken). He also joined an action for damages to the private prosecution and sought compensation for mental suffering and pecuniary damage.
7. The District Court (tingsrätten) of Stockholm held an oral preparation of the case on 1 February 1999 and an oral hearing on 27-28 January and 13 February 2000. It heard several witnesses. In accordance with the normal procedure in cases concerning criminal liability under the Freedom of the Press Act, the court sat with three professional judges and a jury of nine members.
8. The District Court put to the jury 66 questions relating to the articles published in Expressen and 76 questions relating to the articles published in Aftonbladet. Each question referred to one or more statements or pictures published in the various articles, and the jury had to answer whether the publication of the statements or pictures constituted gross defamation or defamation of a normal degree. The jury answered all but six questions in the negative. In accordance with the applicable rules, the jury’s finding of “no guilt” was final. As regards the remaining six questions, however, the jury found that certain published statements or pictures amounted to defamation of a normal degree. The court then had to make a re-assessment of liability. The contravening statements or pictures were the following:
1. The heading on the front page stating “He is pointed out as PALME’S MURDERER” [“Han pekas ut som PALMES MÖRDARE”] together with a picture of the applicant. [Expressen, 30 September 1996]
2. The text on page 6 reporting a statement made by an unnamed source within the South African intelligence service: “He is the type of person that you do not cheat unpunished. He kills without a second’s hesitation.” [“Han är den typen av person som man inte lurar ostraffat. Han dödar utan en sekunds tvekan.”] [Aftonbladet, 29 September 1996]
3. The text on page 6: “In addition to Long reach, Williamson and White had several companies together, some with links to the Mafia. Among others, the GMR Group in the Seychelles which was used for laundering money from illegal activities. When Long reach was wound up, White is supposed to have started a sawmill in Beira in Mozambique. A perfect cover for other activities. Weapons and drugs are two products that have been mentioned.” [“Vid sidan av Long reach hade Williamson och White flera andra företag ihop, en del med kopplingar till maffian. Bland annat GMR Group på Seychellerna som användes för att tvätta pengar från illegal verksamhet. När Long reach avvecklades ska White ha startat ett sågverk i Beira i Mocambique. En perfekt täckmantel för annan verksamhet. Vapen och droger är två produkter som nämnts.”] [Aftonbladet, 29 September 1996]
4. The text on page 6: “White has been dealing with most things. – He is one of southern Africa’s biggest poachers, tells a source. It is to a large degree his fault that the elephants in Mozambique are all but extinct. Together with Williamson, Anthony White appropriated the ivory.” [“White har sysslat med det mesta. – Han är en av södra Afrikas största tjuvskyttar, berättar en källa. Det är till stor del hans skuld att elefanterna i Mocambique är så gott som utrotade. Anthony White tog tillsammans med Williamson hand om elfenbenen.”] [Aftonbladet, 29 September 1996]
5. The subheading on page 6 “... but earns more on smuggling and poaching” [“... men tjänar mest på smuggling och tjuvjakt”] together with the ensuing text stating “But according to several statements, the main part of his income derives from smuggling and poaching.” [“Men enligt flera uppgifter kommer största delen av hans inkomster från smuggling och tjuvjakt.”] [Aftonbladet, 30 September 1996]
6. The caption on page 7 “TODAY – SMUGGLER IN MOZAMBIQUE” [“I DAG – SMUGGLARE I MOCAMBIQUE”] under a picture of the applicant. [Aftonbladet, 30 September 1996]
9. By a judgment of 24 February 2000, the District Court acquitted the editors in all respects and rejected the applicant’s claims for damages. It found that all six passages in issue depicted the applicant as a criminal or a person with a reprehensible lifestyle. However, given, inter alia, the great general interest in these statements in Sweden, the court found that it had been justifiable to publish the relevant statements and pictures. It further considered that the newspapers had had a reasonable basis for the published information. In the latter respect, the court had regard to how and from whom the information had been obtained and to the fact that, due to the nature of the information in question and the constraints of a fast news service, the possibility of checking the veracity of the statements had been limited.
10. The applicant appealed to the Svea Court of Appeal (Svea hovrätt). The appellate court held an oral hearing and heard essentially the same witnesses as the District Court.
11. On 21 February 2002 the Court of Appeal upheld the District Court’s judgment. It gave the following reasoning:
“The Court of Appeal finds, like the District Court, that the relevant information in Expressen and Aftonbladet depicts Anthony White as a criminal and as having a reprehensible lifestyle. The information has been liable to expose him to the contempt of others and consequently, as such, constitutes defamation.
The question then is whether there are grounds for excluding liability. Pursuant to chapter 7, section 4, subsection 14 of the Freedom of the Press Act, and chapter 5, section 1, subsection 2 of the Criminal Code, liability for defamation by means of printed matter is excluded if two conditions are met: 1) it would be justifiable to communicate the information, and 2) the information should be correct or the communicator should have had a reasonable basis for the assertion.
If the information is correct it may as a rule be communicated even if it is deprecatory, if this is justifiable with reference to the public news interest. However, there is no general right always to speak the truth if the statements are offensive. A balance has to be struck between the protection against offensive statements and the demands of freedom of speech. In certain situations the interest of protecting someone against offensive statements has to yield to the public interest.
Expressen has claimed that, on account of the public interest – the murder of the country’s prime minister –, it was justifiable to name and show a photograph of Anthony White in the newspaper. Aftonbladet, for its part, has asserted that, in the circumstances, it was justifiable to describe Anthony White’s personality and conduct.
The question of who killed Olof Palme attracted at the relevant time and still attracts considerable public interest. As regards the question of whether in the circumstances it was justifiable to communicate the information, the Court of Appeal agrees with the District Court’s assessment that it was obviously legitimate to write about the so-called “South Africa trail” and to present information in this regard. However, the question is whether it was justified to identify the plaintiff by name and picture in the manner employed and to publish statements to the effect that he was supposed to be guilty of large scale, serious criminality.
[The responsible editors] have asserted that the publications in question were not remarkable in view of the fact that it was commonly known who Anthony White was and of which crimes he was guilty. It emerges from the information that has come to hand in the case that, within certain groups in southern Africa and Europe, it was known that Anthony White had engaged in the alleged activities. It has also been shown that books have been published in which Anthony White has been named and his service as an elite soldier in the army unit Selous Scouts, which has a dubious reputation, has been described. The information in the case reveals that Anthony White has been much better known than he has wished to admit in southern Africa and among representatives of various organisations for the protection of animals and the conservation of nature in southern Africa as well as in Europe. Anthony White does not therefore appear as an ordinary private person with regard to whom there is a particular interest of protection.
In view of the above, and for the reasons given by the District Court in this respect, the Court of Appeal finds that it was justifiable in the circumstances to publish Anthony White’s name and picture in Expressen and to publish information about the person Anthony White in Aftonbladet. In so finding, the Court of Appeal has also taken into account that Anthony White had declined to comment on information presented by the journalists of Aftonbladet.
With respect to the question of whether the information is correct, it is word against word. Anthony White has asserted that he is innocent of all the accusations, that the information given about him was based on pure invention, that it is unverified or given by untrustworthy persons and that it was based on third or fourth generation hearsay, while [the responsible editors] appear still to assert that it cannot be excluded that Anthony White could be the person who murdered Olof Palme. The Court of Appeal concludes, however, that [the responsible editors], who have the burden of proof for their claims, have not shown that the disseminated information was correct.
As regards the question of whether there has been a reasonable basis for the assertions, the Court of Appeal takes account of the following considerations.
In defence of the publications in question, [the responsible editors] have asserted, among other things, that Anthony White’s name and picture have been published in international news media and on Swedish television.
In response to what has been stated in this respect, the Court of Appeal would point out that each newspaper is responsible for its own publication. Consequently, the fact that the name and picture of the plaintiff had already been published by other news services has not relieved Expressen and Aftonbladet of the obligation to make their own assessment of the credibility of the information. The fact that the information had already been published by other media shows, however, that these news services might have considered that there was a reasonable basis for the information.
In their defence, [the responsible editors] have also pointed out that, despite time constraints, they had careful checks made which gave an unequivocal picture of Anthony White.
It has been established that the main basis for the assertions in issue in the case was the statements made by [the former senior official of the South African security police] Dirk Coetzee and that the newspapers checked that information mainly by having the journalists who wrote the articles contact journalist colleagues, public servants [and] representatives of various organisations for the protection of animals and the conservation of nature. However, with a few exceptions, the persons contacted have not been named.
The contents of the testimony given by [the six journalist witnesses] before the Court of Appeal show that each of them separately has had high ambitions to find out the degree of truth of Dirk Coetzee’s statements and to check with reliable sources who the person Anthony White was. What has come to hand in the case reveals that the witnesses, each one through their own work, have received concordant information. Checks have been made with several informants in different countries and in different capacities. ...
Having regard to the above, in particular the checks made, and to the fact that the informant Dirk Coetzee also here [before the Court of Appeal] has given the impression of being a credible person, the Court of Appeal considers that the communication of the identifying information does not appear unjustified. In the Court of Appeal’s view, there has been a reasonable basis for the assertion and the reproduction of the picture in Expressen. The Court of Appeal further considers that Aftonbladet, in the circumstances, must be considered to have performed the checks that were called for. Having regard to this and the reasons given with respect to the publication in Expressen, the Court of Appeal finds that there was also a reasonable basis for the assertions in Aftonbladet.”
12. On 29 May 2002 the Supreme Court (Högsta domstolen) refused the applicant leave to appeal.
13. In order for an act committed by means of printed matter to constitute a criminal offence it must be punishable under both the Freedom of the Press Act and general criminal law.
Chapter 7, section 4 of the Freedom of Press Act provides:
“With due regard to the purpose of freedom of the press for all, specified in chapter 1, the following acts shall be deemed to be offences against the freedom of the press if committed by means of printed matter and if they are punishable by law: ...
14. defamation, whereby a person designates someone as a criminal or as having a reprehensible lifestyle, or otherwise communicates information liable to expose that person to the contempt of others, and, if the person defamed is deceased, the act causes offence to his survivors, or might otherwise be considered to violate the sanctity of the grave except, however, in cases in which it is justifiable to communicate the information, having regard to the circumstances, and proof is presented that the information was correct or there were reasonable grounds for the assertion; ...”
Chapter 5, section 1 of the Criminal Code reads:
“A person who designates someone as being a criminal or as having a reprehensible lifestyle or otherwise communicates information liable to expose that person to the contempt of others, shall be sentenced for defamation to a fine.
If he was duty-bound to make a statement or if, in the circumstances, it was otherwise justifiable to communicate information in the matter, and proof is presented that the information was correct or there were reasonable grounds for the assertion, liability shall be excluded.”
Chapter 5, section 2 of the Criminal Code provides:
“If the offence defined in section 1 is regarded as gross, the person shall be sentenced for gross defamation to a fine or to imprisonment of no more than two years.
In assessing whether the offence is gross, particular regard should be had to whether the information, because of its content, the scope of its dissemination or otherwise, was liable to cause serious damage.”
NON_VIOLATED_ARTICLES: 8


ITEMID: 001-70043
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF STOIANOVA AND NEDELCU v. ROMANIA
IMPORTANCE: 1
CONCLUSION: Violation of Art. 6-1;Non-pecuniary damage - financial award
TEXT: 4. The applicants were born in 1974 and 1975 respectively and live in Bucharest.
5. Following an incident on 17 March 1993 in which C.D. was robbed of some gold jewellery after being set upon and thumped by a group of people, the applicants were arrested and remanded in custody on 14 April 1993.
6. In an indictment of 10 June 1993 issued by the public prosecutor's office at the Bucharest Court of First Instance, the applicants were committed for trial on a charge of robbery, an offence punishable under Article 211 § 1 of the Criminal Code.
7. By a judgment of 24 November 1993, they were acquitted and released. The court held that the facts in respect of which they had been prosecuted could not be attributed to them.
8. The prosecution appealed. The Bucharest County Court gave judgment on 12 July 1994 holding that the steps taken by the prosecution in the criminal proceedings were null and void. It therefore set the judgment of 24 November 1993 aside and referred the case back to the public prosecutor's office. It noted, in particular, that the steps taken by the prosecution against the applicants had been taken in the absence of a lawyer and that, furthermore, the prosecution had omitted to question certain witnesses during the investigation and had failed to examine a number of essential facts that could have led to the identification of the perpetrators of the incident that had occurred on 17 March 1993.
9. That decision became final after being upheld by the Bucharest Court of Appeal in a judgment of 27 October 1994. Subsequently, the criminal proceedings were reopened by the public prosecutor's office at the Bucharest Court of First Instance.
10. In an order of 11 November 1997, the prosecutor N.O. decided to discontinue the proceedings. In his order he stated that, although the facts of which the victim, C.D., had complained had actually happened, it could not be proved beyond all doubt that the responsibility lay with the applicants. The prosecutor also pointed out that a long period of time had elapsed since the incident in question and ordered the police to take no further action in the case.
11. The prosecution served that decision on the applicants, at their request, by letters dated 11 March and 4 December 1998 respectively.
12. On 12 May 1999 the Principal Public Prosecutor at the Bucharest County Court set aside the order of 11 November 1997 and, relying on Articles 220 and 270 of the Code of Criminal Procedure, ordered the proceedings to be reopened against the applicants for robbery and inciting third parties to give false evidence, offences punishable under Articles 211 and 260 of the Criminal Code respectively. The public prosecutor's office considered that the decision of the hierarchically lower public prosecutor's office had been inconsistent with the evidence on the file and that, furthermore, the prosecution had been incomplete because various steps had not been taken, such as bringing the presumed perpetrators face to face in the presence of their lawyers and taking evidence from certain witnesses.
13. On 26 May 2000 a police officer who had investigated the charges brought against the applicants asked the prosecuting authorities to stop the prosecution.
14. On 9 February 2001 the prosecuting authorities sent the investigation file back to the same police authority. No procedural steps were taken between 27 April and 30 November 2001. On 14 January 2002 the police referred the case to the public prosecutor's office at the Bucharest Court of First Instance, which referred it back to the police authority on 17 October 2002 for them to continue the investigation in respect of the applicants.
15. On a number of occasions in 2003 and 2004, the prosecuting authorities summoned the applicants, the injured party and several witnesses for questioning in relation to the incident that had occurred on 17 March 1993 (see paragraph 5 above). The documents provided show that the witnesses refused to comply with the summons on the ground that they could no longer recall the matters about which the prosecution wanted to question them.
16. In an order of 21 April 2005, the public prosecutor's office noted that the special limitation period for prosecuting the applicants, which was twelve years having regard to the maximum sentence for which they were liable for robbery, had expired on 17 March 2005. It accordingly ordered the criminal proceedings to be discontinued.
17. The Code of Criminal Procedure contains the following relevant provisions:
“Where the prosecutor finds that a procedural step or measure taken in the course of the criminal investigation is not in conformity with the law, he shall invalidate it by a reasoned order.”
“The investigation shall be resumed in the event of ... reopening of the criminal proceedings.”
“1. The prosecutor may order criminal proceedings to be reopened if, subsequent to a decision discontinuing the proceedings, it is established that the ground on which his earlier decision was based did not actually exist or no longer exists.
2. Proceedings shall be reopened following an order of the prosecutor to that effect.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-77786
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF KOBENTER AND STANDARD VERLAGS GMBH v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 10;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 8. The first applicant, an Austrian national born in 1960 and living in Vienna, is an editorial journalist at the newspaper “Der Standard”. The second applicant is the owner and publisher of this newspaper.
9. On 26 October 1997 a group of homosexuals, the “Austrian Forum of Gays and Lesbians” (“Österreichisches Schwulen- und Lesbenforum”, ÖSLF) held a demonstration in St. Pölten, at which the editors of the magazine “Der 13. – Zeitung der Katholiken für Glaube und Kirche” (The 13th – Newspaper of Catholics for Faith and Church) took pictures of participants and published them together with an article written by K. D. in its issue of 13 November 1997. That article reflected a negative and hostile position towards homosexual relationships, suggesting, inter alia, that “they [homosexuals] ought to be disciplined 'gender-specifically' with whips and pizzles! (sie gehören 'geschlechtsspezifisch' mit Peitsche und Ochsenziemer zurechtgewiesen)” and that “nazi-methods should be applied to them!” It read further that “homosexuals now crawl like rats out of their holes and are fed 'lovingly' by politicians and church officials”.
10. Subsequently 44 homosexual persons filed a private prosecution (Privatanklage) against the author K. D. for defamation and a compensation claim under the Media Act against the owner and publisher of “Der 13.”
11. On 13 July 1998 the Linz Regional Court (Landesgericht) found that certain passages of the article constituted the offence of insult (Beleidigung) under Section 115 of the Criminal Code (Strafgesetzbuch) and ordered the owner and publisher of “Der 13.” to pay compensation to four plaintiffs who could be identified on the pictures. It dismissed the compensation claim as regards the other plaintiffs and acquitted K. D. The court found that K. D. had not mentioned any of those plaintiffs' name in his article and that it could not be established that he had known that his text would be illustrated by these pictures. On pages 14-15 the judgment contained an excursus about the nature of homosexuality, referring to a book called “Lexicon of love (Lexikon der Liebe)” and the results of an opinion survey on this topic. It read, inter alia, that “in truth, homosexuality includes also the lesbian world and, of course, that of animals”, which was followed by a long passage describing in detail examples of same-sex practices among different animals.
12. Subsequently, politicians and representatives of the Austrian Forum of Gays and Lesbians publicly criticised the deciding judge K.-P. B. for the text and style of this judgment, which was documented in a number of press releases by the Austrian Press Agency (APA) of 13 July, 1 and 2 September 1998, including an article published by “Der Standard” with the title “The judge and the dear cattle (Der Richter und das liebe Vieh)” on 1 September 1998.
13. On 2 September 1998 “Der Standard” published two articles written by the first applicant, whereby the first one referred to the commentary (Kommentar) at issue on page 32, which read as follows:
“The punishment chamber (Strenge Kammer)
Samo Kobenter
It is strange how often the avowed defenders of western values are inclined to adopt draconian methods when they feel them to be jeopardised by people with different beliefs, ideas or lifestyles. If a writer in some odd rag just says he would like to flog gay people or beat them with bulls' pizzles, that would not normally be worth mentioning, other than to say that everyone is entitled to live out his sexual fantasies and obsessions as he pleases, even in words, as long as the objects or subjects of his desires derive as much pleasure from it as he does.
Where such matters are being dealt with in court, however, we might expect at the end of the twentieth century that a judge of even minimal enlightenment would, at the very least, deliver a judgment that differs more than somewhat from the traditions of medieval witch trials. A judge in Linz, K.-P. B., has achieved the feat of acquitting a defendant who was given the benefit of the doubt although no doubt was apparent – on the contrary, the judge's reasoning handed the flogger enough arguments to justify the threats of punishment he had made so enthusiastically, even if only in writing. That flies in the face, for a start, of any conception of law which sees the courtroom as more than just a punishment chamber for all possible tendencies.
Lending support to a homophobe's venomous hate campaign with outrageous examples from the animal kingdom casts doubt on the intellectual and moral integrity of the judge concerned. The fact that public clarifications are now needed to the effect that homosexuals are not animals prompts concern about the state of this country.”
14. On 18 September 1998 judge K.-P. B. decided that the above-mentioned excursus on pages 14-15 be taken out of the judgment of 13 July 1998.
15. Subsequently disciplinary proceedings were opened against judge K.-P. B. On 20 July 1999 the Innsbruck Court of Appeal (Oberlandesgericht), acting as disciplinary authority, imposed the disciplinary penalty of a warning. On 20 September 1999 the Supreme Court (Oberster Gerichtshof) confirmed this decision.
16. In the meantime, judge K.-P. B. filed a private prosecution against the first applicant for defamation (Üble Nachrede) and a compensation claim under the Media Act against the second applicant on account of the above article published on 2 September 1998.
17. On 29 June 1999 the St. Pölten Regional Court convicted the first applicant of defamation under Section 111 §§ 1 and 2 of the Criminal Code and imposed a fine of ATS 13,500 (EUR 981) on him, suspended on one year's probationary period. It also ordered the second applicant to pay ATS 50,000 (EUR 3633) in compensation to judge K.-P. B. under Section 6 of the Media Act and to publish the judgment. It found in particular that the following statements were capable of lowering judge K.-P. B. in the public esteem, constituting the slanderous reproach that he had violated his obligations under the law and the rules on professional conduct (Gesetzes- und Standespflichten), required of a judge:
a) the judgment delivered by the private prosecutor would only differ somewhat from the traditions of medieval witch trials (das vom Privatankläger gefällte Urteil würde sich nur “marginal von den Traditionen mittelalterlicher Hexenprozesse abheben”) and
b) that judge K.-P. B. would lend support to a homophobe's venomous hate campaign with outrageous examples from the animal kingdom (und dieser würde “die geifernde Hetze eines Homophoben mit haarsträubenden Belegen aus dem Tierreich stützen”).
18. The Court noted, inter alia, that even if the reasoning of that judgment contained irrelevant annotations, it could not be inferred from it that the private prosecutor K.-P. B. believed that different rights were accorded to homosexuals and heterosexuals, nor that he had compared homosexuals with animals or that he had put them on an equal footing.
19. On 11 November 1999 the applicants appealed against this judgment, claiming that the article at issue criticised exclusively the reasoning of the judgment and not the way in which judge K.-P. B. had conducted the trial. The statements were permissible value judgments based on facts and, thus, protected under Article 10 of the Convention. Arguing that journalistic liberty also allowed a certain degree of exaggeration and even provocation, and considering the public discussion caused by the reasoning of the judgment not only in various media but also among judges, the polemical style of the article was not disproportionate either.
20. On 16 February 2000 the Vienna Court of Appeal dismissed the applicants' appeal and confirmed the Regional Court's judgment. It found that an average reader, interested in the subject-matter, would understand by the first statement that the private prosecutor had grossly violated fundamental procedural rights, such as the principles of impartiality and adversarial hearings, which were regularly breached in medieval witch trials. Thus, this reproach of violating the rules on professional conduct required of a judge consisted in concrete facts, which were not proved true by the records of the trial. The second statement was not only a value judgment, but also insinuated that judge K.-P. B. had sided with the accused K. D. and had, thus, been partial. As it was not mentioned in the article that judge K.-P. B. had impartially conducted the trial and that only certain passages of the judgment were subject to that criticism, the statements could not be considered as value judgments based on facts. Rather, in their context, they were disparaging statements of facts, falling outside the scope of protection of Article 10 of the Convention. Since certain passages of the above judgment proved to be legally superfluous, as affirmed by the private prosecutor's decision of 18 September 1998 taking them out, they could have been subject to (fair) comment.
21. Section 6 § 1 of the Media Act provides for the strict liability of the publisher in cases of defamation; the victim can thus claim damages from him. In this context “defamation” has been defined in Section 111 of the Criminal Code (Strafgesetzbuch), as follows:
“1. As it may be perceived by a third party, anyone who makes an accusation against another of having a contemptible character or attitude, or of behaving contrary to honour or morality, and of such a nature as to make him contemptible or otherwise lower him in public esteem, shall be liable to imprisonment not exceeding six months or a fine (...)
2. Anyone who commits this offence in a printed document, by broadcasting or otherwise, in such a way as to make the defamation accessible to a broad section of the public, shall be liable to imprisonment not exceeding one year or a fine (...)
3. The person making the statement shall not be punished if it is proved to be true. As regards the offence defined in paragraph 1, he shall also not be liable if circumstances are established which gave him sufficient reason to assume that the statement was true."
VIOLATED_ARTICLES: 10


ITEMID: 001-4529
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: JURIC v. SWEDEN
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Josep Casadevall
TEXT: The applicant, born in 1968, presently resides in Karlskrona, Sweden. In his application form, he states that he has Croatian nationality.

a.
On 26 February 1994 the applicant arrived in Sweden and requested asylum. He stated that he came from Bosnia-Hercegovina and that he had fled the country to escape the ongoing war. He had not taken active part in the conflict. He had stayed with his sister in Zagreb, Croatia since January 1994. In Zagreb he had obtained a Croatian passport. However, this was to be considered as a travel document only. If sent to Croatia, he would not receive any help or protection from Croatian authorities and he would risk to be sent back to Bosnia-Hercegovina to serve in the Bosnian-Croatian army.
On 5 September 1994 the National Immigration Board (Statens invandrarverk) rejected the applicant’s request and ordered his deportation to Croatia. Finding that the applicant held both Bosnian and Croatian citizenship, the Board referred to a decision concerning asylum seekers with such double nationality taken by the Swedish Government on 26 May 1994. According to the decision, the prevailing situation in Bosnia-Hercegovina rendered deportations to that country impossible. Consequently, in assessing applications from these asylum seekers, the crucial question was whether they could be afforded protection in Croatia. The Board noted that, according to available information, persons in the applicant’s situation did not risk to be sent from Croatia to Bosnia-Hercegovina against their will. There was no reason to assume that Croatia would not afford the applicant protection. Moreover, no acts of warfare had taken place on Croatian territory for some time and a cease-fire had been agreed upon by the contending parties. Thus, there was no apparent risk that Croatian citizens in general would be forced to take part in armed conflict. Further, the applicant had failed to show that he personally faced such a risk.
The applicant appealed to the Aliens Appeals Board (Utlänningsnämnden). On 21 June 1995 the Appeals Board granted the applicant a temporary residence permit until 1 December 1995 and quashed the deportation order. In so doing, the Board referred to a Government decision of 5 May 1995 according to which the worsened situation in Croatia constituted an impediment to the deportation of asylum seekers to that country.
On 7 November 1995 the applicant submitted a new application for a residence permit. He referred to his previous statements. Further, in a statement of 19 February 1997 he claimed that he should be granted a residence permit on humanitarian grounds as, during his long stay in Sweden, he had adjusted to Swedish society.
On 4 March 1997 the Immigration Board rejected the applicant’s new application and ordered his deportation to Croatia. The Board had regard to a guiding decision taken by the Swedish Government on 28 November 1996. In that decision the Government stated, inter alia, the following:
(Translation)
“Recently, the situation in Bosnia-Hercegovina has improved. After the parties signed a general agreement on peace in Bosnia-Hercegovina there is an ongoing peace process in the country. It has been strengthened by the establishment of Government institutions and the general elections held in September 1996. There are still actual restrictions on the movement of people within the territory of the State. The possibility to return to the home district without risking harassment and outrage is, in the present circumstances, dependent on the prevailing ethnic composition of the population in the district. In the Government’s view, it is now possible to return to the home district where one’s own ethnic group is in the majority. This view corresponds to the position taken by the UNHCR in regard to the return of people to Bosnia-Hercegovina. The relative stability enjoyed by “the majority population” in the respective regions leads to the conclusion that asylum seekers from such places in Bosnia-Hercegovina can no longer be considered as generally being in need of protection.
…
As regards the situation in Croatia and the region, the ongoing peace process, based on a general agreement on peace in Bosnia-Hercegovina, has lead to stabilisation. The relations between Croatia and the Federal Republic of Yugoslavia have improved. Croatia has been admitted into the Council of Europe. Acts of warfare have not occurred on Croatian territory since August 1995. The risk of further conflicts appears unlikely. The general situation in Croatia has improved in such a way since the Government’s previous assessment in May 1995 that nowadays Croatian citizens can generally be afforded protection in Croatia.”
The Immigration Board noted that the Swedish Government’s view, that Croatian citizens who are not or have not been residing permanently in Croatia are given the same protection as other citizens of that country, had been confirmed by the United Nations High Commissioner for Refugees (UNHCR) and the Croatian Government. As regards the applicant’s situation, the Board found that, being an ethnic Croat, he could not be sent back to his Muslim-dominated home district in Bosnia-Hercegovina. With respect to the possible deportation to Croatia, the Board noted that no new circumstances had been invoked by the applicant. Consequently, the Board reiterated the conclusions drawn in its previous decision. Furthermore, the Board found that there were no reasons of a humanitarian nature to grant the applicant a residence permit.
Following the applicant’s appeal, the Aliens Appeals Board, on 16 April 1997, quashed the Immigration Board’s decision and referred the case back for re-examination. The Appeals Board found that no oral hearing had been held by the Immigration Board, as required by law.
The Immigration Board held an oral hearing in the case on 6 June 1997 during which the applicant stated that his brother, who had also applied for asylum in Sweden, had returned to Croatia voluntarily, as he could not stand having to wait for his application to be examined. After his return, the applicant had talked to him only once and did not know how he managed in Croatia. The applicant claimed that he could not go to Croatia, as he was a Bosnian citizen without connections to Croatia. Further, he had lost contact with his parents who remained in Bosnia-Hercegovina.
In a decision of 25 August 1997 the Immigration Board rejected the applicant’s new application on the same grounds as those expressed in the quashed decision.
The applicant appealed and invoked a medical certificate issued on 3 April 1998 by chief physician G.S. and therapist I.S. at the psychiatric clinic at the hospital in Karlskrona. According to the certificate, the applicant’s mental health was failing. He also invoked his family ties with his uncles and his sister who lived in Sweden.
On 11 June 1998 the Aliens Appeals Board rejected the applicant’s appeal. It shared the conclusions drawn by the Immigration Board and added that the applicant’s family ties were not sufficient to grant him a residence permit as he had not been living with his relatives.
The applicant later submitted another application to the Aliens Appeals Board and requested that the enforcement of the deportation order be suspended. He invoked further medical certificates issued by G.S. and I.S. on 4 September and 27 November 1998. According to the certificates, the applicant had had regular contact with the clinic since 10 March 1998 due to a post-traumatic stress syndrome. He had been admitted to the clinic on 19 November 1998 as his mental state had deteriorated, probably on account of his imminent deportation.
On 16 December 1998 the Appeals Board rejected the latest application.
Relevant domestic law
Under Section 29 of the Act on Compulsory Mental Care (Lagen om psykiatrisk tvångsvård, 1991:1128), such care shall be terminated at the request of the competent police authority whenever the person placed in care is ordered to be deported. This presupposes, however, that the chief physician finds that the alien’s condition allows that the deportation takes place. According to Section 33, no appeal lies against the chief physician’s decision.


ITEMID: 001-84741
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF STEPNIAK v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 8
JUDGES: Giovanni Bonello;Josep Casadevall;Kristaq Traja;Lech Garlicki;Nicolas Bratza;Stanislav Pavlovschi
TEXT: 4. The applicant was born in 1964 and lives in Bytom.
5. On 21 October 2002 the applicant was arrested. By a decision of 24 October 2002 the District Court in Wodzisław Śląski remanded him in custody on charges connected with organised crime. It had regard to evidence gathered by the prosecuting authorities which indicated that the applicant had committed the offences concerned. The applicant appealed, to no avail.
6. The same court subsequently extended the applicant's detention by decisions of, inter alia, 10 July and 7 October 2003 and 7 March 2004, until, respectively, 15 October 2003, 19 January and 19 July 2004. The court relied on the evidence gathered in the case which pointed to the likelihood of the applicant's guilt. It was also of the view that the applicant, if released, could hinder the proper course of the investigations and judicial proceedings by exerting pressure on witnesses and by colluding with his co-accused. It noted that many persons appeared to have been involved in the commission of the offences concerned and that it was therefore necessary to obtain a considerable amount of evidence. It also had regard to the applicant's criminal record.
7. On numerous other occasions the prosecuting authorities refused to release the applicant, relying on the same arguments and referring to the evidence gathered in the investigation.
8. On an unspecified number of occasions the applicant was allowed to see his wife during his detention. Between 15 December 2002, the date on which the applicant's wife gave birth to a son, and 21 November 2003 the applicant saw her and his son on at least three occasions.
9. On 30 September 2003 the prosecuting authorities lodged a bill of indictment with the Wodzislaw Śląski District Court. The applicant was charged with multiple counts of fraud.
10. On 11 December 2003 the court ordered that the applicant should serve a prison sentence imposed on him by a final judgment given in another criminal case concurrently with the present detention.
11. Hearings in the case were held on 7 January, 18 February and 25 October 2004. On the latter date the applicant was convicted as charged.
12. The applicant submitted envelopes of two letters sent to him by the Court on 15 January 2004 and 30 March 2004. The envelope of the first letter bears the stamp “Censored (cenzurowano) – the Wodzisław Śląski District Court – Date”, signed with an illegible signature. The envelope of the second letter bears the full official stamp of the Wodzisław Śląski District Court and a handwritten note “censorship” (cenzura), accompanied by a handwritten date, 9 April 2004.
13. The legal provisions governing monitoring of detainees' correspondence applicable at the material time are set out in a judgment delivered by the Court on 6 December 2005 (Wasilewski v. Poland, no. 63905/00, §§ 16-21).
VIOLATED_ARTICLES: 8


ITEMID: 001-86286
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF NATALIYA SHEVCHENKO v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial;Violation of Article 13 - Right to an effective remedy
JUDGES: Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Snejana Botoucharova;Volodymyr Butkevych
TEXT: 4. The applicant was born in 1965 and lives in Kyiv.
5. Between 1991 and September 1997 the applicant and her minor son born in 1984 were officially registered as residents in a municipal hostel rented by the Municipal Post Office, the applicant’s employer, for its employees. Throughout this period, the Post Office, in fact, never provided the applicant with a room in this hostel, citing lack of available premises. The applicant and her son were allowed to occupy two beds in a hostel for single individuals managed by “D.H.”, another company. After the expiration of the residency registration, in October 1997 the applicant found an unoccupied room in the Post Office’s hostel and moved there with her son.
6. On 28 November 1997 the Post Office brought eviction proceedings against the applicant (and her minor son) before the Starokyivsky District Court of Kyiv (Старокиївський районний суд м. Києва).
7. On 10 December 1997 the Starokyivsky District Court of Kyiv, citing the lack of territorial jurisdiction, referred the case to the Leningradsky District Court of Kyiv (Ленінградський районний суд м. Києва). The latter, in turn, on 22 March 1998, transmitted the case to the Minsky District Court of Kyiv (“the District Court” Мінський районний суд м. Києва).
8. On 4 June 1998 the applicant lodged a counter-claim, asserting her right to occupy the room in the Post Office’s hostel.
9. In 1999 the Kyiv State Administration decided to convert the Post Office’s hostel into a municipal apartment building enabling its occupants to apply for life-long tenancies.
10. On 20 January 2000 the District Court ordered the applicant’s and her son’s removal to the “D.H.’s” hostel and dismissed her counterclaim. The court found, in particular, that the applicant had never obtained proper authorisation to occupy the room in the Post Office’s hostel. On 29 March 2000 the Kyiv City Court (“the City Court”; Київський міський суд) upheld this judgment on the applicant’s appeal in cassation, it became final and enforcement proceedings were instituted.
11. On 25 September 2000 Deputy City Prosecutor ordered suspension of the enforcement proceedings.
12. On 25 December 2000 the Presidium of the Kyiv City Court quashed the previous judgments following the protest introduced by the Deputy City Prosecutor and remitted the case to the District Court for a fresh consideration. The court found, in particular, that “D.H.” should have been summoned to the proceedings, as it was unclear whether the applicant had any right to reside in its hostel.
13. On 25 December 2001 the District Court rejected the Post Office’s eviction claim, at the same time having refused to recognize the applicant’s right to occupy the room in its former hostel. It found that, although the applicant had no proper authorisation to move into the room at issue, she could not be evicted, as her status of a “D.H.” hostel resident had never been regularized and she had no alternative lodging. Both parties appealed.
14. On 2 April 2002 the City Court quashed this judgment and remitted the case for a fresh consideration, having found, in particular, that the first-instance court had failed to instruct the applicant that, in view of the City Administration’s decision to convert the hostel into an apartment building, she could request to be issued with an authorisation for life-long tenancy.
15. On 20 December 2002 the applicant amended her claims, seeking, in particular, to obtain authorisation of tenancy. Her son, having reached the age of majority, joined the proceedings.
16. On 12 March 2003 the District Court dismissed the Post Office’s eviction claim and ordered the City Administration to issue the applicant with tenancy authorisation. The court found, in particular, that, having been registered as a resident in the Post Office’s hostel, the applicant had acquired the right to occupy a room in it as early as in 1991. The Post Office, however, had unlawfully failed to provide her with a room. The Post Office appealed.
17. On 12 June 2003 the City Court quashed this judgment and remitted the case for a fresh consideration. It found, in particular, that the District Court’s conclusions concerning the applicant’s right to reside in the Post Office’s hostel were insufficiently reasoned. The applicant appealed in cassation against this ruling.
18. On 15 September 2003 the Supreme Court rejected the applicant’s request for leave to appeal in cassation.
19. On 26 January 2005 the District Court rejected the Post Office’s eviction claim and upheld the applicant’s right to occupy the room. This judgment was not appealed against.
20. In the course of the proceedings the District Court scheduled some sixty hearings. Some twelve of these hearings were adjourned on account of the applicant’s or her representative’s absences in court; eleven on account of the plaintiff’s absences or requests; and fifteen on account of judges’ vacations and various other court matters.
21. The applicant also maintained, without providing details, that her employer was deliberately processing data on her family life in violation of the law, that the bailiffs had unlawfully interfered with her possessions during the enforcement proceedings and that her son had been unable for a prolonged period of time to receive a passport and to obtain access to professional education on account of lack of residency registration. The applicant did not raise any relevant complaints before the domestic judicial authorities.
VIOLATED_ARTICLES: 13
6


ITEMID: 001-98298
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: BELCHIKOVA v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: The applicant, Ms Anna Mikhaylovna Belchikova, is a Russian national who was born in 1933 and lives in the city of St Petersburg. She was represented before the Court by Mr A.A. Shumilov, a legal specialist practising in that city.
The Russian Government (“the Government”) were represented by Ms V. Milinchuk, former Representative of the Russian Federation at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 22 April 2000 the applicant’s sister passed away. According to her will, the sister bequeathed her apartment to the applicant. It appears that at that time the applicant resided in the apartment on the basis of a rent agreement dated 14 February 2000 and valid for a term of one year.
Thereafter the applicant was involved in court proceedings against other members of her family over the validity of the will and rights to the apartment.
By first instance judgment of 29 May 2002 the Pushkinskiy District Court of the city of St Petersburg (“the District Court”), composed of judge M. and lay assessors K. and T., declared the sister’s will invalid on the ground of her insanity.
The judgment was taken on the basis of oral evidence given by the parties and nine witnesses, including the doctors of the applicant’s sister, as well the sister’s medical records and two medical examination reports.
On 12 November 2002 the St Petersburg City Court (“the City Court”) upheld the judgment on appeal.
The applicant did not question the court composition in her case either before the first instance or on appeal.
On 2 February 2005 the District Court examined the eviction request of the applicant’s relatives and decided to evict the applicant.
The court referred to the judgment of 29 May 2002 and the rent agreement of 14 February 2000 and noted that the agreement expired on 14 February 2001 and that the applicant did not have any right to live in the apartment any longer. The court also noted that the owner of the apartment and his family had not owned any other apartments and had the intention of residing in the apartment themselves and that the applicant was not in need of a residence, since she owned a house in the Crimea, and had until 2002 owned an apartment in the town of Kola in the Murmansk Region and then sold it. Having regard to the above considerations, the court considered that the eviction order requested by the plaintiffs had been an appropriate and necessary measure which had been justified by the interests of the owner of the apartment.
This judgment was upheld on appeal on 14 June 2005.
On 6 July 2005 the bailiffs commenced enforcement proceedings in respect of the judgment of 2 February 2005.
It is not clear whether the applicant has been evicted.
In June 2005 the applicant made a request to the President of the District Court about the powers of lay assessors T. and K.
By letter of 2 August 2005 the President of the District Court responded to the applicant’s request, having provided her with copies of documents confirming the powers of lay assessors T. and K.
The applicant considered that the lay assessors in her case had been incompetent to take part in the proceedings and applied for review of the judgment of 29 May 2002 on the ground of new or newly discovered evidence.
By decision of 13 December 2005 the District Court rejected her request for review, having noted that the alleged incompetence of the lay assessors in her case was not new or newly discovered circumstance which would enable it to reopen the case.
On 9 February 2006 the Regional Court upheld the decision of 13 December 2006 on appeal.


ITEMID: 001-71347
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF SHEVCHENKO v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13;Violation of P1-1;Remainder inadmissible;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings
JUDGES: Zoryana Bortnovska
TEXT: 4. The applicant, Ms Valentyna Tymofiyivna Shevchenko, is a Ukrainian national who was born on 23 February 1970 and lives in Odessa, Ukraine.
5. In October 1999 the applicant instituted proceedings in the Zarichny District Court of Sumy (the “Zarichny Court”) against the Department of Education of the Sumy Municipal Council (Department), seeking the recovery of unpaid salary.
6. On 15 November 1999 the Zarichny Court allowed her claims and ordered the Department to pay the applicant UAH 1,181.71 in compensation. On 19 January and 28 January 2000, the Department paid the applicant UAH 199.39 in execution of the judgment.
7. On 1 February 2000 the applicant instituted proceedings in the Zarichny Court against the State Bailiffs’ Service of Sumy, seeking the full execution of the judgment of 15 November 1999. She also sought a declaration of unlawfulness as to the actions of the Bailiffs’ Service in deciding to join the pending writs of execution against the Department.
8. On 9 March 2000 the Zarichny Court rejected her claims as unsubstantiated. In particular the court found that the judgment of 15 November 1999 could not be fully executed due to the lack of funds of the Department.
9. On 19 April 2000 the Sumy Regional Court (the “Sumy Court”) rejected the applicant’s cassation appeal against the decision of 9 March 2000.
10. The applicant’s complaints with a view to instituting supervisory proceedings, lodged with the President of the Sumy Court, were rejected on 11 May 2000 as being unsubstantiated.
11. On 15 June 2000 the Zarichny Bailiffs’ Service informed the applicant that there were 1,152 pending writs of execution that had been issued against the Department for a total sum of UAH 348,529.80. It also informed the applicant that insufficient funds were available to execute the decision. The applicant was invited to accept UAH 74 in execution of the judgment.
12. On 21 August 2000 the Deputy President of the Sumy Court lodged a protest with the Presidium of that court against the judgment of 9 March 2000 of the Zarichny Court. On 4 September 2000 the Presidium of the Sumy Court quashed the decisions of 9 April and 19 April 2000 and remitted the case for fresh consideration.
13. During 2000 the applicant received UAH 411.38 as a result of enforcement measures of the State Bailiffs.
14. On 1 February 2001 the Zarichny Court rejected the applicant’s claims as being unsubstantiated. On 23 February 2001 the Sumy Court upheld that decision. In particular, it held that, if there are a number of execution proceedings pending against the same legal entity, these proceedings can be joined (зведене виконавче провадження). It also informed the applicant that the partial enforcement of judgments authorised by the Bailiffs’ Service was lawful.
15. At the time of lodging the application, the debt owed to the applicant amounted to UAH 770.33.
16. On 8 August 2001 the enforcement proceedings were terminated due to the Department’s lack of funds.
17. On 5 October 2003 the applicant informed the Court that the judgment given in her favour remained unenforced.
18. On 15 March 2004 the applicant informed the Court that she had received the full amount of the debt due to her. She also confirmed that she had received an additional sum of UAH 500 in compensation. On 17 May 2004 the Government informed the Court that the judgment had been enforced in full.
19. The relevant domestic law is set out in the judgment of 27 July 2004 in the case of Romashov v. Ukraine (no. 67534/01, §§ 16-19).
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-68166
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF THALER v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 7. The applicant was born in 1944 and lives in Innsbruck.
8. The applicant is a medical practitioner whose contract with the Tyrol Regional Health Insurance Board (Gebietskrankenkasse) was terminated by the latter on 31 December 1996. Subsequently the applicant was practising without a contract with the Health Insurance Board and is meanwhile retired. He complains about two sets of proceedings.
9. On 29 October 1996 the applicant instituted proceedings against the Tyrol Regional Health Insurance Board. He claimed that the defendant had to pay an additional amount of 120 Austrian schillings (ATS) for doctor’s fees.
10. On 2 April 1997 the Joint Arbitration Committee (Paritätische Schiedskommission) dismissed the applicant’s claim. The applicant appealed against this decision.
11. On 2 July 1998 the Regional Appeals Commission (Landesberufungskommission) dismissed the appeal.
12. On 25 September 1998 the applicant lodged a complaint with the Constitutional Court. He alleged, inter alia, that the general agreement between the Association of Social Insurance Boards (Hauptverband der Sozialversicherungsträger) and the Tyrol Medical Association (Ärztekammer) on which his doctor’s fees were based violated his constitutional right to non-discrimination (Recht auf Gleichheit).
13. On 15 April 1999 he amended his complaint and alleged that the Regional Appeals Commission was no independent and impartial tribunal within the meaning of Article 6 of the Convention by virtue of its composition.
14. On 17 December 1999 the Constitutional Court dismissed the complaint. It did not accept that the Regional Appeals Commission’s decision had violated the applicant’s constitutional rights. As regards the composition of the Regional Appeals Commission, the Constitutional Court noted that the applicant’s complaint had been lodged out of the statutory six months time-limit. However, referring to its constant case-law, it found that the applicant’s constitutional rights were not violated.
15. On 11 February 1997 the applicant instituted proceedings against the Tyrol Regional Health Insurance Board. He claimed that it had to pay some ATS 18 million (about 1,3 million euros) as the doctor’s fees provided for in the general agreement between the Association of Social Insurance Boards and the Tyrol Medical Association were far too low and, therefore, his contract with the Regional Health Insurance Board was null and void.
16. On 11 August 1997 the applicant made a request for transfer of jurisdiction (Devolutionsantrag) as the Joint Arbitration Committee failed to decide within the statutory six months-period.
17. On 28 October 1997 the Regional Appeals Commission, after having held a hearing, dismissed the applicant’s claim.
18. On 15 December 1997 the applicant lodged a complaint with the Constitutional Court. He alleged that the contract between the Association of Social Insurance Boards and the Tyrol Medical Association on which his doctor’s fees were based violated his constitutional right to non-discrimination. Further, he complained that the Regional Appeals Commission was no independent and impartial tribunal within the meaning of Article 6 of the Convention by virtue of its composition and submitted that the Association of Social Insurance Boards had provided two deputy directors of the Tyrol Regional Health Insurance Board as assessors.
19. On 16 December 1999 the Constitutional Court dismissed the complaint. Referring to its constant case law, the Constitutional Court found that the Regional Appeals Commission in general may be considered as an independent and impartial tribunal because of the term of office of the members and because members were not bound by any instructions. Further it found that ...
“It is true that the assessors of the Regional Appeals Commission are representatives of two conflicting spheres of interest. However, these members are not bound by instructions from the sending organisation ... and they are by no means spokespersons of these organisations. Their task is rather to bring their experience to bear in the proceedings. ... A violation of the required impartiality could, thus, ... be due to specific circumstances in the individual case resulting, for example from an official or organisational dependence of the appointed member of the Regional Appeals Commission. ...
Such official or organisational dependence does, however, in the Constiutional Court’s view, not arise from the mere fact that the parties of the general agreement provide the assessors of the Regional Appeals Commission. ... In view of the legally guaranteed freedom from instructions of the members of the Regional Appeals Commission, a constellation affecting the appearance of independence and impartiality could - also in the light of the case Hortolomei v. Austria (cited above) - only exist if the appointed assessors had been involved in the preparation of the general agreement or if there were other specific reasons raising legitimate doubts about their independence and impartiality in determining certain legal matters. ...”
20. In conclusion, the Constitutional Court found no indication that the members of the Regional Appeals Commission lacked independence or impartiality.
21. Pursuant to Sections 341 ff. of the Social Insurance Act (Allgemeines Sozialversicherungsgesetz) the Association of Social Insurance Boards (Hauptverband der Sozialversicherungsträger) on behalf of the Regional Health Insurance Board (Gebietskrankenkasse) concludes with the respective Regional Medical Association a general agreement (Gesamtvertrag). The Regional Health Insurance Board concerned has to consent to the general agreement which is the basis of individual contracts (Einzelvertrag) between the respective Regional Health Insurance Board and medical practitioners. It regulates, inter alia, the doctor’s fees for medical treatments effected by practitioners under contract.
22. The Social Insurance Act, in the version in force at the material time, provided as follows:
"344 (1) In order to arbitrate and give a decision on disputes of a legal or factual nature arising in connection with an individual contract, a Joint Arbitration Committee shall be established in each Land ...
(2) The Joint Arbitration Committee shall consist of four members, two of whom shall be appointed by the Regional Medical Association and two by the Regional Health Insurance Board, which is party to the individual contract. ...
(4) An appeal can be lodged with the Regional Appeals Commission against a decision given by the Joint Arbitration Committee. ....
345 (1) For each Land, a permanent Regional Appeals Commission shall be established. It shall consist of a professional judge as Chairman and of four assessors. The Chairman shall be appointed by the Federal Minister of Justice. The Chairman must be a judge who, at the time of his appointment, is working at a court trying cases under labour and social insurance legislation. The Regional Medical Association and the Association of Social Insurance Boards each provide two assessors."
23. The non-judicial members of the Regional Appeals Commission are appointed for a renewable period of five years and not subject to the hierarchical authority of the bodies which sent them (Article 21 of the Federal Constitution). They may only be recalled, if they do not anymore fulfil the professional requirements to be appointed or if they violate or neglect their official duties. Moreover, they may be recalled upon request of the sending organisation for important personal reasons by the Federal Minister of Justice.
24. Decisions of the Regional Appeals Commissions are excluded from the competence of the Administrative Court (Verwaltungsgerichtshof) by Article 133 § 4 of the Federal Constitutional Law.
25. On 1 September 2002 an amendment of the Social Insurance Act, modifying the manner of appointment of the assessors, entered into force. The amended version of Section 345, in so far as relevant, provides as follows:
“... The Federal Minister of Justice shall appoint two assessors upon proposal of the Austrian Medical Association respectively and two upon proposal of the Association of Social Insurance Boards. Representatives and employees of the Regional Health Insurance Board and members and employees of the Regional Medical Association who are parties to the general agreement on which the individual contract subject to the dispute is based, must not be assessors in the respective proceedings.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1