ITEMID: 001-110941
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: TURZYNSKI v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano
TEXT: 1. The applicant, Mr Andrzej Turzyński, is a Polish national who was born in 1959 and lives in Gdańsk. He was represented before the Court by Ms B. Słupska-Uczkiewicz and Ms M. Gąsiorowska, lawyers practising in Wrocław and Warsaw respectively. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
2. In 1998 the applicant was diagnosed with multiple sclerosis (stwardnienie rozsiane). He is in a wheelchair; both of his legs and his left arm are paralysed. The applicant also suffers from urinary incontinence and wears incontinence pads. He is slowly losing his eyesight, is affected with palsy and also experiences cramps.
3. On unspecified dates in 2002 the applicant was convicted of fraud in two separate sets of criminal proceedings. He was sentenced to two prison terms of two years each. His actual detention, however, was postponed because of his poor health.
4. On 5 November 2008 the applicant was arrested by the police. On the same day he was transported to Gdańsk Remand Centre where he started serving his combined fouryear prison sentence.
5. He was committed to Gdańsk Remand Centre, where he alternated between the neurology ward of the remand centre’s hospital wing and a general prison wing. From 5 November 2008 until 15 January 2009 and from 30 April until 10 September 2009 the applicant was detained in the hospital wing. In the remaining time he was imprisoned in the remand centre’s general wing. He shared his cell with three healthy inmates. The cell in question was adapted to special needs detainees in that it had a wider door and a special handle had been installed on the wall next to the toilet. The representatives of the Ombudsman inspected the applicant’s cell and confirmed that it was adapted to the needs of disabled persons.
6. The applicant was usually scheduled to see the remand centre’s inhouse general practitioner once every fortnight. In his opinion, the medical check-ups should have been more frequent and run by a neurologist.
7. The remand centre’s nurse administered the applicant’s medicine once or twice a day. The applicant claimed that the pharmacological treatment prescribed was insufficient to stop his health from deteriorating. In his opinion, the only way to slow down the development of his disease and to avoid complete body paralysis was to have regular and specialised physiotherapy.
8. The applicant received a daily supply of incontinence pads from the prison nurse. He changed them with the assistance of his fellow inmates. He had to pay for this help with cigarettes and other goods. The applicant submitted that he was in an inferior position vis-à-vis his cellmates because he depended on their assistance for his hygiene and daily routines. He also felt humiliated in front of them because he had no privacy when having his incontinence pads changed and he often smelt of urine. The latter led to his being mocked, and caused increased tension and disputes among his cellmates.
9. The applicant also submitted that, in order to attend his physiotherapy sessions, he had had to be carried in his wheelchair across the external yard by fellow prisoners. On those occasions he had only worn his pyjamas and had often been cold. In addition, on several occasions, he had been dropped and his wheelchair had been badly damaged. For those reasons the applicant decided not to continue his physiotherapy.
10. On 12 October 2010 the applicant was conditionally released from detention.
11. On an unspecified date in 2008 the applicant filed an application for adjournment of the execution of his prison sentence with the Kościerzyna District Court. On 20 November 2008 the court dismissed his application. It found that the applicant could serve his sentence and be treated in prison hospital. The court relied on the supplementary expert opinion of 20 October 2008 (see paragraph 20 below) and the information submitted by the Chief Medical Officer of the Gdańsk Regional Inspectorate of the Prison Service. According to the latter, the neurological ward of the Gdańsk Remand Centre ensured constant medical care to prisoners suffering from chronic neurological conditions. It disposed of well-equipped physiotherapy room and each disabled prisoner was provided with specialised assistance in his daily routine.
12. The Government submitted that the applicant had had regular neurological consultations (on 23 December 2009, 23 March and 4 May 2010). The applicant had been signed up for regular physiotherapy sessions which he had frequently refused to attend, and for that reason his allegations that he had his fingers and toes massaged only on a few occasions were groundless. The applicant’s fellow inmates, who had been carefully chosen, assisted him voluntarily in his daily routine. This was not the result of the lack of personnel but of the applicant’s refusal to cooperate with the nurses. The applicant was of the opinion that they were able to satisfy his needs. In Gdańsk Remand Centre there was also a prisoner whose job was to help the disabled inmates in the presence of the medical staff. However, the applicant rejected the assistance of this person. The Government maintained that the applicant had never complained about his inmates. On the contrary, on 12 March 2009 he said that “the inmates help willingly”. Further, on 11 June 2010 the applicant refused to be transferred to the neurological ward where he was to be provided with constant medical care and nursing. The applicant stated that the conditions in his cell were good and that he had cooperative inmates.
13. In spite of the applicant’s allegations that he needed constant assistance, he managed to keep his cell tidy and was twice rewarded for that. His incontinence pads, sheets and underwear were changed adequately according to his needs.
14. The medical wards of the remand centres in Poland were well equipped for treating patients with multiple sclerosis. They offered the same level of treatment as received by patients in public hospitals. As indicated by the Chief Medical Officer of the Gdańsk Regional Inspectorate of the Prison Service, patients treated outside the prison system did not receive the same high level of constant medical care as patients with MS in Polish prisons. For this reason, the applicant’s claim that the pharmacological treatment had been insufficient to stop his health from deteriorating was groundless.
15. In a report dated 29 May 2005 court-appointed experts in neurology and forensic medicine at the Gdańsk Medical Academy categorically stated that the applicant was not, at the time of the report, or in the future, fit to be held in detention.
16. In a report of 18 September 2006 the same medical experts submitted that the applicant’s advanced multiple sclerosis posed an absolute obstacle to his detention. The experts noted that it was inevitable that the applicant’s health would get worse, although they would expect him to experience short periods in which his illness could be expected to be more stable. The experts concluded that the applicant’s detention in a prison hospital could be taken into consideration but only under the condition that the prison authorities would provide him with specialist neurological care, regular physiotherapy and nursing adequate to the degree of his illness.
17. On 28 May 2007 the same medical experts drafted a supplementary report in which they stressed that the applicant’s detention should be considered only if he were assigned to the hospital wing, received specialised neurological care, constant physiotherapeutic care, nursing and almost permanent assistance by a person who would be able to help him with his daily routine (prior to his imprisonment, the applicant was assisted by his wife). The above-mentioned conditions had to be strictly complied with to avoid a risk to the applicant’s health.
18. The Government submitted that in December 2005 a criminal case against the applicant was filed with the Kościerzyna District Court. The victims in this case informed the authorities that in September 2005 the applicant had arrived alone in a car at their plot of land.
19. The Government maintained that the medical experts who had prepared the reports in 2006 and 2007 had not been provided with the witnesses’ accounts who had seen the applicant walking in September 2005.
20. On 20 October 2008 the same medical experts concluded in their supplementary report that the applicant could serve his sentence in Gdańsk Remand Centre. The conditions ensured by the neurological ward of that remand centre were compatible with the applicant’s needs. The supplementary report was drafted to clarify the 2007 opinion. The experts stated that the applicant’s condition was characterised by periods of deterioration (lasting a few days) and of remissions (lasting a few months or even years). If the applicant were to be detained in Gdańsk Remand Centre, he needed to be provided with some help in his daily routine (bath), neurological consultations, hospitalisation in the neurological ward of the Remand Centre if necessary and one-hour physiotherapy five times a week. It was no longer required that the applicant be provided with permanent assistance in all basic daily routines. The experts also stated that there was a risk that the applicant had exaggerated the seriousness of his condition which could not be excluded by means of medical examination. They noticed the improvement in his condition, which probably enabled the applicant to move in and out of his wheelchair independently and observed that the degree of paralysis of his legs and left arm was less pronounced than claimed by the applicant previously. The experts took into consideration the facts established in the proceedings before the Kościerzyna District Court that the applicant could move on his own and drive a car.
21. On unspecified dates the applicant and his wife applied for temporary release (przerwa w karze). Those requests were dismissed because the relevant penitentiary court considered, on the basis of the medical reports, that the medical care which was being provided to the applicant in the Gdańsk Remand Centre was adequate and sufficient.
22. In addition, the applicant and his wife submitted numerous complaints to the Ombudsman, the Helsinki Foundation of Human Rights, the Regional Inspectorate of the Prison Service (Okręgowy Inspektorat Służby Więziennej) and other domestic authorities. In his letter of 28 April 2009 and numerous subsequent communications the Ombudsman informed the applicant’s wife that her allegations concerning inadequate medical care provided to her husband had been ill-founded.
23. By a letter dated 9 June 2009 the Head of the Gdańsk Regional Inspectorate of the Prison Service informed the applicant’s wife that her numerous complaints that her husband was receiving inadequate medical care in prison had been considered ill-founded. It was noted that the applicant had twice been detained in the remand centre’s hospital where he had received adequate medical care. The applicant was signed up for regular physiotherapy sessions, which he had frequently refused to attend. It was acknowledged that the applicant required another person’s assistance with his daily routine. It was noted, however, that such assistance was being provided voluntarily by the applicant’s fellow inmates. Lastly, the applicant’s incontinence pads, sheets and underwear were changed adequately according to his needs.
24. By a letter dated 12 August 2009 the same authority once more informed the applicant’s wife that her complaints had been considered illfounded. It was noted that the applicant’s health had been stable for three years and that he was being detained in the hospital wing where he was receiving adequate medical care. It was submitted that, following the recommendations of the physiotherapy specialist, the applicant was exercising five times per week.
25. By a letter dated 30 October 2009 the Head of the Gdańsk Regional Inspectorate of the Prison Service dismissed the complaints of the applicant’s wife. It was noted that the applicant was being detained in a cell adapted to his special needs and that he had refused to attend his physiotherapy sessions, which had been taking place away from his cell. Further, he was assisted in his daily routine by his inmates and prison nurses.
26. By a letter dated 8 January 2010 the same authority informed the applicant that he was being regularly assisted by a nurse.
27. The provisions pertaining to medical care in detention facilities and general conditions of detention, and the relevant domestic law and practice are set out in the Court’s judgments in the cases of Kaprykowski v. Poland, no. 23052/05, §§ 36-39, 3 February 2009; Sławomir Musiał v. Poland, no. 28300/06, §§ 48-61, 20 January 2009; and Orchowski v. Poland, no. 17885/04, §§ 74-85, 13 October 2009.


ITEMID: 001-81325
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF BOYCHENKO AND GERSHKOVICH v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Peer Lorenzen
TEXT: 3. The applicants, Mr Aleksandr Aleksandrovich Boychenko and Mr Vladislav Vladimirovich Gershkovich, are Russian nationals, who were born in 1953 and 1971 respectively and live in Moscow.
4. On 14 May 1993 the Ministry of Finance of Russia issued “Series III” domestic hard currency bonds (облигации внутреннего государственного валютного займа III серии). On 15 January 1999 the first applicant acquired bonds of a total nominal value 200,000 United States dollars (USD) and the second applicant acquired bonds of a total nominal value USD 2,010,000.
5. On 14 May 1999 the bonds matured and the applicants presented them for redemption.
6. On 11 June 1999 the applicants were informed that Vnesheconombank acting as the Government's agent refused to redeem the bonds, referring to a letter of the Ministry of Finance of 14 May 1999 No. 11-02-09 advising the holders of Series III bonds to refrain from presenting the bonds for redemption for a period of six months in the light of the unfavourable economic situation in the country. In the same letter the Ministry undertook to negotiate restructuring of the debt during this period.
7. On 29 November 1999 the Government of Russia issued Order No. 1306 which provided for the existing Series III bonds to be converted into new bonds of two types with four and eight year maturity periods.
8. On an unspecified date the applicants brought civil proceedings against the Government, the Ministry of Finance and Vnesheconombank seeking recovery of the nominal value of the bonds and damages. They also asked the court to defer the payment of the court fees.
9. On 22 March 2000 the Presnenskiy District Court of Moscow awarded the applicants the nominal value of the bonds and dismissed the claim for damages. The first applicant was awarded USD 200,000 and the second applicant was awarded USD 2,010,000.
10. On 6 June 2000 the Moscow City Court dismissed the appeal lodged by the Ministry of Finance and upheld the judgment.
11. On 17 July 2000 the applicants submitted writs of execution to Vneshtorgbank.
12. On 20 July 2000 Vneshtorgbank refused to comply with the writs of execution, referring to an application for supervisory review of the judgments which was to be lodged by the Prosecutor of Moscow. The applicants' request to see the application was refused.
13. On 10 August 2000 the Prosecutor of Moscow lodged an application for supervisory review of the judgments.
14. On 28 September 2000 the Presidium of the Moscow City Court granted the application. The Presidium quashed the judgment of 22 March 2000 and the appeal decision of 6 June 2000 on the grounds that the courts had erred in interpretation of the law and failed to rule on the issue of payment of court fees, and remitted the case for a fresh examination.
15. On 6 April 2001 the Presnenskiy District Court examined and dismissed the applicants' claim in full.
16. On 22 May 2001 the Presnenskiy District Court delivered an additional judgment ordering the applicants to pay court fees.
17. On an unspecified date the applicants' appeal against the judgment was dismissed.
18. On 21 November 2002, following a request by the applicants, the Prosecutor of Moscow lodged an application for supervisory review of the judgments.
19. On 24 December 2002 the Presidium of the Moscow City Court examined the application and upheld the judgment of 6 April 2001. In the same proceedings it quashed the judgment of 22 May 2001 concerning the payment of court fees and remitted it for a fresh examination.
20. On 11 August 2003 the Presnenskiy District Court discontinued the proceedings concerning the court fees.
21. On 6 June 2005 the Deputy President of the Supreme Court of the Russian Federation lodged an application for supervisory review of the judgment in the applicants' case.
22. On 8 August 2005 the Presidium of the Supreme Court decided to adjourn its examination of the case, apparently pending a ruling from the Constitutional Court on the matter.
23. In July 2006 the parties informed the Court that the examination of the case by the Presidium of the Supreme Court was adjourned in connection with a case pending before the Constitutional Court of the Russian Federation which concerned a similar issue. Since then the parties provided no information to the Court about the development of the case.
24. Section 11 of the Code of Civil Procedure of 1964 (Гражданский процессуальный кодекс РСФСР), as in force at the relevant time, provided that regional and higher courts could conduct supervisory review of the activities of the lower courts.
25. According to Sections 319, 320 and 327 of the Code, certain senior judicial officers could, at any time, at request of the person concerned or on their own motion, lodge with a higher court an application for supervisory review of a final decision of a lower court on points of law and procedure.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-119263
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: ADMISSIBILITY
DATE: 2013
DOCNAME: KUTOVA v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Paul Lemmens
TEXT: The applicant, Ms Olga Pavlivna Kutova, was born in 1949 and lives in Berezneguvate in the Mykolayiv Region.
The Ukrainian Government (“the Government”) were represented by their Agent, Mr Nazar Kulchytskyy, of the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
In October 2002 the applicant, a businesswoman, sold 60 tonnes of sunflower seeds to a certain K., who introduced himself as the representative of a private company. Shortly afterwards, K., using forged documents, sold the seeds on to other people, who in turn sold the seeds to A., a private company. The latter then consigned the seeds to N., a private company owning a silo.
On 11 October 2002 the applicant complained to the Berezneguvate police that K. had failed to pay her for the seeds. On an unspecified date the police opened a criminal case against him for defrauding the applicant.
On 21 October 2002 the police declared the seeds to be physical evidence and ordered them to be seized and left for storage at the premises of company N.
On 9 January 2003 the applicant lodged a civil claim with the police in the context of the criminal proceedings against K. seeking 66,660 hryvnias (UAH) in compensation for pecuniary damage and UAH 50,000 for non-pecuniary damage.
On 17 July 2003 the police lifted the order for the seizure of the seeds and ordered them to be transferred to the applicant, but on 23 July 2003 the director of N. refused to return them, asserting that they belonged to company A.
On 10 September 2003 the police rejected the applicant’s request to institute criminal proceedings against the director of N. for his failure to transfer the seeds as they believed that the determination of the ownership dispute over the seeds was within the competence of the courts. The applicant challenged that decision before the courts; however, on 21 October and 11 December 2003 respectively the Nova Odessa Court and the Mykolayiv Regional Court of Appeal ruled against her.
On 23 September 2003 the applicant was given permission to participate in the criminal proceedings against K. as a civil claimant.
On 24 December 2003 the Berezneguvate prosecutor’s office quashed the police’s order of 17 July 2003 in its entirety. The seeds remained stored at the premises of company N.
Shortly afterwards, the criminal case was sent to the Berezneguvate Court for trial.
On 17 May 2004 the applicant amended her claim, seeking the return of the seeds instead of compensation for pecuniary damage. On the same date a representative of company A. requested the court to admit as evidence documents proving that the company owned the seeds. The representative also asked the court to hear a witness. It is unknown whether those requests were ever granted.
By a judgment of 8 June 2004, the first-instance court convicted K. of aggravated fraud, sentencing him to a five-year suspended term of imprisonment with a probationary period of three years. The court ordered K. to pay the applicant UAH 7,000 in compensation for non-pecuniary damage, lifted the order for the seizure of the seeds and ordered that they be returned to the applicant.
On 18 June 2004 company A. appealed against that judgment, whereas the other parties to the proceedings, including the applicant, did not choose to appeal. On the same date the trial court, relying in particular on Article 348 of the Code of Criminal Procedure of 1960 (“Code of Criminal Procedure”, as in force at the material time), declared the appeal inadmissible, on the grounds that company A. had not been a party to the proceedings before the first-instance court and thus had no right to lodge an appeal.
On 21 September 2004 the Mykolayiv Regional Court of Appeal quashed the decision of 18 June 2004 and ruled that the appeal was to be examined on its merits. It held that the judgment of 8 June 2004 was in the interests of company A. and concerned the protection of property for the purposes of Article 1 of Protocol No. 1 to the Convention. The inadmissibility decision had deprived the company of access to a court, which was contrary to Article 6 of the Convention. The appellate court did not specify the procedural status of company A. The applicant lodged an appeal in cassation.
On 14 October 2004 the Supreme Court left the applicant’s appeal unexamined, noting that only decisions on the merits were subject to its review.
On 16 November 2004 the appellate court quashed the part of the judgment of 8 June 2004 concerning the return of the seeds, which it found to be “insufficiently reasoned, contradictory, ambiguous and unlawful”. As regards the procedural status of company A., the court noted, without giving any further details, that the appeal had been lodged by “the representative of a civil claimant”. Relying in particular on Articles 80 and 81 of the Code of Criminal Procedure, the court remitted that part of the case to the trial court for fresh consideration.
By a decision of 25 February 2005, the trial court ordered the return of the seeds to the applicant, deeming her their rightful owner and noting that company A. had not been a party to the criminal proceedings. The court also noted that company A. could claim ownership of the seeds by means of civil proceedings.
On 12 April 2005 the appellate court quashed that decision, finding that the trial court had acknowledged that ownership of the seeds was in dispute and had actually determined who owned them. However, the decision in question was contrary to the second paragraph of Article 81 of the Code of Criminal Procedure, which provided that any disputes over the ownership of physical evidence should be resolved in civil proceedings. The appellate court subsequently discontinued its consideration of the matter, explaining that it should be dealt with by means of civil proceedings.
The applicant lodged an appeal on points of law, arguing in particular that company A. had not been a party to the proceedings.
On 13 June 2006 the Supreme Court upheld the ruling of the appellate court although it did not specify the procedural status of company A.
The applicant did not institute civil proceedings for the return of the seeds, which remained in the possession of company A.
On 23 June 2004 bailiffs instituted enforcement proceedings in respect of the part of the judgment of 8 June 2004 concerning the return of the seeds to the applicant.
On 27 July 2004 the Nova Odessa Court suspended the enforcement proceedings following a request submitted by company A.
On 23 September 2004 the same court rejected the bailiffs’ request of 23 June 2004, stating that the judgment of 8 June 2004 was not final and that ownership of the seeds was to be determined in civil proceedings. No appeal was lodged against the decision of 23 September 2004.
Article 79, the third paragraph of Article 80 and the second paragraph of Article 81 of the Code of Criminal Procedure provided at the material time that any disputes over the ownership of physical evidence should be resolved in civil proceedings and that the evidence in question should be kept with the case file or (in the case of perishable or bulky goods) left for storage with a legal entity until judgment had been given. Subparagraph 5 of the first paragraph of Article 81 provided that any objects which had been the target of criminal activity should be returned to their rightful owner.
Article 348 of the Code of Criminal Procedure, as worded at the material time, stipulated that in criminal proceedings an appeal can be lodged by an accused, a victim, a convict, an acquitted person, a civil claimant or a civil respondent, a prosecutor who supported the charges or signed the indictment, a minor subjected to coercive educative measure by a court, the representative of a person subjected to coercive medical measures, and other persons in the cases envisaged by the Code.


ITEMID: 001-75562
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF CIUCCI v. ITALY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of P1-1
JUDGES: David Thór Björgvinsson
TEXT: 5. The applicant was born in 1966 and lives in Livorno.
6. He is the owner of a flat in Livorno, which he had let to I.M.
7. In a registered letter of 20 February 1990, the applicant informed the tenant that he intended to terminate the lease on expiry of the term on 1 September 1990 and asked him to vacate the premises by that date.
8. In a writ served on the tenant on 22 September 1990, the applicant reiterated his intention to terminate the lease and summoned the tenant to appear before the Livorno Magistrate.
9. By a decision of 8 October 1990, which was made enforceable on 11 October 1990, the Livorno Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 31 March 1992.
10. On 9 April 1992, the applicant served notice on the tenant requiring him to vacate the premises.
11. On 28 April 1992, the applicant made a statutory declaration that he urgently required the premises as accommodation for himself.
12. On 30 May 1992, he informed the tenant that the order for possession would be enforced by a bailiff on 23 June 1992.
13. Between 23 June 1992 and 29 November 2001, the bailiff made nineteen attempts to recover possession. Each attempt proved unsuccessful, as the applicant was never granted the assistance of the police in enforcing the order for possession.
14. In the meanwhile, pursuant to Article 6 of Law No. 431 of 1998, on 15 July 1999, the tenant asked the Livorno Magistrate to postpone the enforcement proceedings. On 7 April 2000, the Livorno Magistrate set a fresh date for 24 November 2000.
15. On 9 July 2001, the tenant asked the Livorno Magistrate to postpone the enforcement proceedings.
16. On 20 July 2001, the Livorno Magistrate decided to provisionally suspend the enforcement and adjourned the hearing until 5 October 2001.
17. On 5 October 2001, the hearing was reported to 19 October 2001.
18. On 26 October 2001, the Livorno Magistrate ordered that the premises be vacated as soon as possible.
19. On 6 December 2001, the applicant recovered possession of the flat.
20. The relevant domestic law and practice is described in the Court’s judgments in the cases of Mascolo v. Italy, (no. 68792/01, §§ 14-44, 16.12.2004) and Lo Tufo v. Italy, (no. 64663/01, §§ 16-48, 21.04.2005).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-95736
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF SAVINSKIY AND SHEVCHENKO v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Zdravka Kalaydjieva
TEXT: 4. The applicants were born in 1939 and 1957 respectively and live in Pavlograd and Slovyansk, Ukraine.
5. By a judgment of 7 June 2001 the Pavlograd Town Court (Павлоградський міський суд) awarded Mr Savinskiy 6,376.66 Ukrainian hryvnias (UAH) in salary arrears and other payments to be paid by his former employer, the State company Pershotravenskoye shakhtostroyitelnoye upravleniye-4.
6. By a judgment of 24 December 1997 the Slovyansk Town Court (Павлоградський міський суд) awarded Mr Shevchenko UAH 1,829.89 in salary arrears to be paid by his former employer, the Soda Plant (ВАТ «Содовий завод»), a joint stock company in which the State holds at least 25% of the share capital. By a judgment of 17 July 2000 the same court additionally ordered the debtor company to pay Mr Shevchenko UAH 7,173.09 in payments owed to him upon retirement.
7. After the above judgments had become final, the relevant departments of the State Bailiffs' Service instituted proceedings to enforce them.
8. Subsequently, the insolvency and later the liquidation proceedings against the debtor companies were instituted and the State Bailiffs' Service terminated the enforcement proceedings. The above-mentioned liquidation proceedings are apparently still pending.
9. The judgments in the applicants' favour remain unenforced.
10. The relevant domestic law is set out in the judgment of 26 April 2005 in the case of Sokur v. Ukraine (no. 29439/02, §§ 17-22).
VIOLATED_ARTICLES: 6
P1
VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-100042
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF P.B. AND J.S. v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: Violations of Art. 14+8;Pecuniary and non-pecuniary damage - award
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Giorgio Malinverni;Khanlar Hajiyev
TEXT: 6. The applicants were born in 1963 and 1959 respectively and live in Vienna.
7. The applicants live together in a homosexual relationship. The second applicant is a civil servant and, for the purpose of accident and sickness insurance cover, he is insured with the Civil Servants Insurance Corporation (“the CSIC”) (Versicherungsanstalt Öffentlicher Bediensteter). On 1 July 1997 the first applicant asked the CSIC to recognise him as the dependent (Angehöriger) and to extend the second applicant's insurance cover to include him. He submitted that section 56(6) of the Civil Servants Sickness and Accident Insurance Act (“the CSSAIA”) (Beamten-Kranken- und Unfallversicherungsgesetz) only referred to persons of the opposite sex living with the principally insured person and running the common household without receiving any payment. But, because there were no good reasons for excluding persons living in a homosexual relationship from the privilege of extended insurance cover, section 56(6) should be interpreted as also including homosexual partners.
8. On 2 September 1997 the CSIC dismissed the request, holding that, because the first applicant was of the same sex as the second applicant, his request had to be dismissed. This decision was served on the second applicant who, on 1 October 1997, filed an objection.
9. On 21 November 1997 the Mayor of Vienna, acting as the Regional Governor, quashed the decision on procedural grounds. He held that the CSIC should have served its decision on the first applicant.
10. On 13 January 1998 the CSIC dismissed a request by the first applicant and this time served the decision on him. The first applicant filed objections.
11. The mayor of Vienna confirmed the CSIC's decision on 19 March 1998. Thereupon the first applicant lodged a complaint with the Constitutional Court in which he argued that the exclusion, under section 56(6) of the CSSAIA, of homosexual couples from the extension of insurance cover was in breach of Article 14, read in conjunction with Article 8, of the Convention and was therefore unconstitutional.
12. On 15 June 1998 the Constitutional Court declined to deal with the first applicant's complaint. Referring to its previous case-law, the Constitutional Court found that, in the issue at hand, the legislator had had a very wide margin in which to reach a decision and the decision taken had been within that margin.
13. On an unspecified date the Constitutional Court granted a request by the first applicant for the case to be transferred to the Administrative Court. On 7 September 1998 the first applicant supplemented his complaint to the Administrative Court.
14. On 4 October 2001 the Administrative Court dismissed the first applicant's complaint. It found that the authorities had correctly concluded that section 56(6) of the CSSAIA only applied to heterosexual partnerships. There was no issue under Article 14, read in conjunction with Article 8, of the Convention, because Article 8 did not guarantee specific social rights, and the case at issue did not therefore fall within the ambit of that provision. The exclusion of homosexual partnerships from the scope of section 56(6) of the CSSAIA also complied with the principle of equality because that difference in treatment was justified. While it was true that, where persons of different sex living together in a household in which one of them was running that household while not being gainfully employed, it was, as a rule, safe to conclude that they were cohabiting in a partnership, that was not the case if two persons of the same sex were living together in a household. In the absence of any possibility to register a homosexual partnership, it would have been necessary to undertake delicate enquiries into the most intimate sphere of the person concerned. That difference in the factual situation justified different treatment in law.
15. In proceedings instituted by the Constitutional Court to examine the constitutionality of two similar provisions to section 56(6) of the CSSAIA relating to extending insurance cover to relatives, on 10 October 2005 the Constitutional Court decided to quash section 123(8b) of the General Social Security Act (“the GSSA”) (Allgemeines Sozial-versicherungsgesetz) and section 83(3) of the Social Security Act for Trade and Commerce (“the TCSSA”) (Gewerbliches Sozialversicherungsgesetz). The Constitutional Court explicitly referred to the judgment of the European Court of Human Rights in the case of Karner v. Austria (see Karner v. Austria, no. 40016/98, 24 July 2003) and held that the two provisions in which the extension of insurance cover to unrelated persons living with the insured were discriminatory because they were restricted to persons of the opposite sex.
16. On 1 August 2006 the Social Rights Amendment Act (“the SRAA”) (Sozialrechts-Änderungsgesetz) entered into force amending in particular the GSSA, the TCSSA and also section 56 of the CSSAIA. A second amendment to section 56 of the CSSAIA entered into force on 1 July 2007.
17. Before 1 August 2006 section 56(6) of the Civil Servants Sickness and Accident Insurance Act (Beamten-, Kranken- und Unfallversicherungs-gesetz), in so far as relevant, provided as follows:
“(1) Relatives are entitled to benefits, if they have their ordinary residence in Austria and are neither health insured under the provisions of this Act nor any other provision of law ...
...
(6) A person belonging to the group of parents, ... step-parents and foster parents, children, ... stepchildren and foster children, grandchildren or brothers and sisters of the insured or a person of the opposite sex who is not related to him or her who has been living with him or her in the same household for at least ten months and since then has been doing the domestic work for the insured without payment, unless there is a spouse living in the same household who is able to work, shall be regarded as a member of the household. Only one person can be a member in this sense.”
18. After the amendment to the Civil Servants Sickness and Accident Insurance Act on 1 August 2006, section 56(6) remained the same, but a new paragraph (6a) was introduced. It read as follows;
“A person who is not a relative of the insured and who has been living with him or her in the same household for at least ten month and since then is doing the domestic work for him or her without payment, unless there is a spouse living in the same household who is able to work, shall be regarded as a member of the common household, if
(a) he or she is bringing up one or more children living in the same household ... or did so for at least four years;
(b) he or she is entitled to benefits for the payment of nursing care (at least level 4) pursuant to section 5 of the Federal Nursing Care Benefits Act or pursuant to the provisions of the Regional Nursing Care Benefits Act;
(c) he or she is doing nursing work for the insured who is entitled to benefits (at least level 4) for the payment of nursing care pursuant to the Federal Nursing Care Benefits Act or pursuant to the provisions of the Regional Nursing Care Benefits Act.”
19. On 1 July 2007 a further amendment to the Civil Servants Sickness and Accident Insurance Act entered into force. Section 56(6) no longer applied to non-related persons, but only to relatives of the insured. The newly introduced paragraph 6a was only slightly modified. These provisions, in so far as relevant, read as follows:
“(6) A person belonging to the group of parents, ... step-parents and foster parents, children, ... stepchildren and foster children, grandchildren or brothers and sisters of the insured who has been living with him or her in the same household for at least ten months and since then has been doing the domestic work for the insured without payment, unless there is a spouse living in the same household who is able to work, shall be regarded as a member of the household. He or she shall also be considered a member if he or she is no longer able to do the domestic work. Only one person can be a member in this sense.
(6a) A person who is not a relative of the insured and who has been living with him or her in the same household for at least ten month and since then has been doing the domestic work for him or her without payment, unless there is a spouse living in the same household who is able to work, shall be regarded as a member of the common household, if
(a) he or she is bringing up one or more children living in the same household ... or did so for at least four years, or
(b) he or she is doing nursing work for the insured who is entitled to public benefits at least level 4 pursuant to the Federal Nursing Care Benefits Act or pursuant to the provisions of the Regional Nursing Care Benefits Act.”
20. The last amendment to the Civil Servants Sickness and Accident Insurance Act which entered into force on 1 July 2007 was accompanied by a transitory provision. Section 217(3) and (4) read as follows:
“(3) Persons of the opposite sex and not related to the insured, who, pursuant to section 56(6) as in force on 30 June 2007, had been entitled to benefits as relatives and who on that date had already reached twenty-seven years of age remain entitled to benefits as relatives until the relevant circumstances change.
(4) Persons of the opposite sex and not related to the insured, who, pursuant to section 56(6) as in force on 30 June 2007, had been entitled to benefits as relatives and who on that date had not yet reached twenty-seven years of age remain entitled to benefits as relatives until the relevant circumstances change, but at most until 31 December 2010.”
VIOLATED_ARTICLES: 14
8


ITEMID: 001-84609
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: THE CONDE NAST PUBLICATIONS LTD v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Giovanni Bonello;Ján Šikuta;Josep Casadevall;Kristaq Traja;Nicolas Bratza;Päivi Hirvelä;Stanislav Pavlovschi
TEXT: The first applicant, Condé Nast Publications Ltd, is a company incorporated in England and Wales which is the publisher of Vanity Fair, a magazine published monthly in New York and the United Kingdom. The second applicant, Mr G. Carter, is a Canadian national who is the editor-in-chief of Vanity Fair and lives in New York. They were represented before the Court by Mr M. Stephens, a lawyer practising in London.
Roman Polanski (“RP”), a well-known film director who held dual Polish and French nationality, had pleaded guilty in 1977 in the United States (“US”) to unlawful sexual intercourse with a 13-year-old girl. He fled from the US before sentencing. Thereafter he lived in France from where, being a French citizen, he could not be extradited to the US.
In 2002 the applicants published in the July issue of Vanity Fair an article concerning RP which described how he had allegedly tried to seduce a Swedish model at a fashionable New York nightspot shortly after his pregnant wife’s murder in 1969. He brought an action in the United Kingdom for libel against Vanity Fair and, fearing possible arrest and extradition to the US, applied to give his evidence by video conference link (“VCF”).
On 9 October 2003 the High Court ordered that RP be permitted to give his evidence in the libel trial by VCF from a Paris hotel. It was noted that the technology to be used would be of a high standard and that in VCF evidence there was generally very little delay, very little room for confusion and cross-examination could take place at the same pace as if a witness were present at court. On 11 November 2003 the Court of Appeal allowed the appeal of the applicants. It was considered that it was “clearly an indulgence” to permit RP to give his evidence by VCF and the real question was whether, as a matter of policy in the particular circumstances of this case, that indulgence should be granted. It was considered that the court’s general policy should be to discourage litigants from escaping the normal processes of the law, rather than to facilitate it, so that, accordingly, the judge had erred in making the VCF order which should be set aside.
On 10 February 2005 the House of Lords allowed an appeal by RP by a majority of 3-2.
Lord Nicholls of Birkenhead, delivering the leading majority speech, with whom Lord Hope of Craighead and Baroness Hale of Richmond agreed, found that there was no doubt that, as between RP and Condé Nast, the judge’s order was rightly made. The test of the relevant Practice Direction for the use of VCF, namely that it could be allowed to save costs and where it would be beneficial to the efficient, fair and economic disposal of the litigation, was satisfied in the circumstances.
RP was entitled to bring his action in the United Kingdom where the offending article had been published. His flight from the US in 1978 and the steps he had taken ever since to remain beyond the reach of the US court, did not preclude him from bringing proceedings in England in respect of damage to his reputation flowing from publication of defamatory material in the United Kingdom. Hence, the libel proceedings did not constitute an abuse of the process of the court. A direction that RP’s evidence might be given by means of VCF, an entirely satisfactory means of giving evidence, would not prejudice Condé Nast to any significant extent; indeed, any prejudice would more likely be suffered by RP by reason of the lessened impact of his evidence and celebrity status on the jury. Improvements in technology enabled RP’s evidence to be tested as adequately if given by VCF as it would be if given in court. If a VCF order were refused, RP would be gravely handicapped in the conduct of the proceedings. In practice he would either abandon his action or, possibly, continue but under the serious disadvantage that his oral evidence on the crucial dispute of fact, concerning what took place at the restaurant, would not be placed before the jury. Either way, in its conduct of the litigation Condé Nast would receive an unjustified windfall at the expense of RP. Condé Nast would find itself in the fortunate position of not being called to account for having published what might be a serious libel.
Whether the use of the court’s procedures in a particular way would bring the administration of justice into disrepute or would be an affront to the public conscience, called for an overall balanced view. A fugitive from justice was not as such precluded from enforcing his rights through the courts of the United Kingdom. RP’s status as a fugitive offender did not deprive him of any rights he would otherwise possess in respect of the subject matter of his action. The contrary approach, adopted in the name of the public interest, would lead to wholly unacceptable results in practice. It would mean that for so long as a fugitive remained on the run from the criminal law, his property and other rights could be breached with impunity. That could not be right. Such harshness had no place in the law that knew no principle of fugitive disentitlement.
Although a direction that a fugitive such as RP may give his evidence by use of VCF was a departure from the normal way a claimant gives evidence in libel proceedings, the extent of this departure should not be exaggerated; it was expressly sanctioned by the Civil Procedure Rules and was not an indulgence. Despite his status, a fugitive from justice was entitled to invoke the assistance of the court and its procedures in protection of his civil rights. He could bring or defend proceedings even though he was, and remained, a fugitive. If he was entitled to lodge such proceedings there could be little rhyme or reason in withholding from him a procedural facility flowing from a modern technological development which was now readily available to all litigants. To withhold that facility would be to penalise him because of his status. The appeal was to be allowed and the judge’s order restored.
Lord Slynn of Hadley dissented. He noted that there were at least two policy considerations arising in the present case which were in conflict. The first was that the court should not frustrate the claimant’s accepted right to sue in the civil courts by refusing a procedural step provided for by the Rules when there was no valid reason to do so. The second was that the civil courts should not take steps the effect of which was to frustrate or impede the due execution of the criminal procedure of another State with which the United Kingdom had an extradition treaty and under which, if the appellant were in England, the United Kingdom would be required to respond to a request for his extradition so that he could be sentenced and obliged to comply with any sentence imposed.
Although it was recognised that the fact that RP was a fugitive offender did not bar him from starting proceedings, there was only one reason for the request of the order which was to avoid the risk or likelihood of arrest and extradition and to escape sentence and punishment in the US for an admitted offence. To accede to his request in the absence of other overriding considerations compelling the grant of the application, would be contrary to public or judicial policy.
Where a person convicted on his own admission fled the jurisdiction, in the absence of special factors compelling a different result, a VCF order may and should be refused where the sole reason for asking for it was that he wished to escape conviction or sentence in the country where he had commenced proceedings or to avoid extradition to another country for the same reason.
Lord Carswell also dissented, finding that although it was not necessary to import into the United Kingdom legal system the full rigour of the fugitive offender doctrine as it applied in the US, permitting a fugitive to give his evidence by VCF so that he could stay out of the jurisdiction and avoid arrest affronted the public conscience and brought the administration of justice into disrepute. Moreover, it was noted that excluding the claimant from presenting his case in court by VCF would not constitute a breach of Article 6 of the European Convention of Human Rights as the right of access to court is not absolute.
The trial took place in July 2005. RP gave evidence by VCF from a Paris hotel suite and the editor and eyewitnesses came to the UK and gave evidence in person. The applicants claim that RP’s cross-examination by VCF was made difficult for defence counsel given delays and inaudibility. On 22 July 2005 the jury found for RP and awarded him 50,000 pounds sterling (GBP) in damages. The applicants did not lodge an appeal.
The Civil Evidence Act 1995 provides, in so far as relevant, that:
“1.—(1) In civil proceedings evidence shall not be excluded on the ground that it is hearsay.
(...)
3. Rules of court may provide that where a party to civil proceedings adduces hearsay evidence of a statement made by a person and does not call that person as a witness, any other party to the proceedings may, with the leave of the court, call that person as a witness and cross-examine him on the statement as if he had been called by the first-mentioned party and as if the hearsay statement were his evidence in chief.”
R. 32 of the Civil Procedure Rules (“CPR”) provides:
“(I) The Court may control the evidence by giving directions as to ...
(c) the way in which the evidence is to be placed before the court.”
Annex 3 to the Practice Direction to the CPR, Pt 32 sets out video conferencing guidance. Paragraph 2 of that guidance states:
“VCF may be a convenient way of dealing with any part of proceedings: it can involve considerable savings in time and cost. Its use for the taking of evidence from overseas witnesses will, in particular, be likely to achieve material saving of costs, and such savings may also be achieved by its use for taking domestic evidence. It is, however, inevitably not as ideal as having the witness physically present in court. Its convenience should not therefore be allowed to dictate its use. A judgment must be made in every case in which the use of VCF is being considered not only as to whether it will achieve an overall cost saving but as to whether its use will be likely to be beneficial to the efficient, fair and economic disposal of the litigation. In particular, it needs to be recognised that the degree of control a court can exercise over a witness at the remote site is or may be more limited than it can exercise over a witness physically before it.”


ITEMID: 001-76899
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: AHLSKOG and Oy MAPLE HOUSE Ab. v. FINLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The first applicant, Mr Lars Ahlskog is a Finnish national, who was born in 1929 and lives in Kokkola. He owned and administered a limited liability company named Oy Maple House Ab, the second applicant. The company was subsequently declared insolvent and wound up. They were represented before the Court initially by Mr Matti Wuori and subsequently by Mr Simo Ellilä, lawyers practising in Helsinki. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties and as they appear from the documents, may be summarised as follows.
On 30 June 1999 a bank instituted proceedings against the applicant company, the first applicant and his son with a view to obtaining payment on the basis of promissory notes signed on behalf of the applicant company as a debtor. The first applicant and his son stood surety for the debt. Certain real property owned by the applicant company also served as collateral for the debt. The respondents contested the claim. On 8 February 2000 the Kokkola District Court (käräjäoikeus, tingsrätten) invited their further submissions, urging them to specify on what grounds they contested the claim, failing which the court could render a default judgment. Their submissions were received on 15 and 20 March 2000.
On 21 March 2000 the District Court rendered a default judgment ordering the respondents to pay the bank almost 1,500,000 Finnish marks (FIM; corresponding to some 250,000 euros) in capital. The court delivered a default judgment because it considered that the respondents had failed to answer clearly the questions put to them about their grounds for contesting the claim.
On 9 May 2000 the default judgment was served on the respondents. On 12 May 2000 they filed an application for a re-trial with the court that had delivered the default judgment and requested a stay of execution. On 15 June 2000 the court stayed the execution.
Meanwhile, they also lodged a procedural complaint with the Vaasa Court of Appeal (hovioikeus, hovrätten). On 22 May 2000 the court stayed the execution of the default judgment. It reasoned:
“... [T]he default judgment, which is currently subject to complaint, does not form the basis for the insolvency application [see below], as alleged by the applicants in their written observations. The application to declare Oy Maple House Ab insolvent is based on the request for payment with a risk of insolvency (konkurssiuhkainen maksukehotus, betalningsuppmaning vid hot om konkurs), which was served on the company on 25 November 1999. There is therefore no reason to preclude the use of the default judgment as ... a basis for enforcement in the insolvency proceedings.”
On 9 June 2000 the Court of Appeal dismissed the complaint without considering its merits owing to the fact that the case was pending before the lower court. Thus, the provisions relied on did not operate. The Court of Appeal's decision to stay the execution ceased to have effect.
The applicants appealed. On 17 October 2000 the Supreme Court (korkein oikeus, högsta domstolen) dismissed the appeal.
On 6 February 2004 the District Court quashed the default judgment insofar as it concerned the first applicant and his son but upheld it as regards the company. At the same time it ordered that execution of the judgment should no longer be stayed.
All parties appealed. On 10 May 2004 the Court of Appeal stayed the execution of the lower court's judgment. The case is still pending before the national courts.
The bank presented the applicant company with a request for payment within eight days with a risk of insolvency, which was served on 25 November 1999. On 3 December 1999 the company contested the request.
On 29 March 2000 the bank petitioned the District Court in order that the company be declared insolvent, arguing that it had failed to pay its debt and also relying on the above default judgment of 21 March 2000.
On 9 May 2000 the petition was served on the company, which contested it, arguing that the bank's claim was not clear and undisputed as required by the then Insolvency Act (Act no. 31/1868; konkurssisääntö, konkursstadgan) as the company had lodged an appeal against the default judgment. In its further written submission of 22 May 2000 the company submitted that neither of the grounds on which the insolvency petition was based, i.e. the request for payment with a risk of insolvency or the default judgment, was sufficient for declaring it insolvent. The company argued that the former could not be used in the proceedings as it had been contested. The claim was not therefore clear and undisputed.
On 19 June 2000 the District Court held an oral hearing at which the company was represented by counsel. In its decision of the same day the court rejected the insolvency petition. It noted that the court had issued the above default judgment owing to the company's failure to state clearly its grounds for opposing the bank's claim even when directly asked by the court to do so. The company had lodged an application to set aside the default judgment, which application did not appear to be clearly groundless. In the circumstances of this particular case, the bank's claim could not therefore be regarded as clear and undisputed.
The bank appealed, requesting that the company be declared insolvent on the ground that it had not paid its debt despite the fact that it had been served with a request for payment with a risk of insolvency. In its letter of appeal the bank stated that the company's counsel had not submitted any grounds for contesting the insolvency petition at the District Court hearing. The Court of Appeal requested the company to produce its written reply to the appeal by 3 August 2000. Following the company's request dated that day, in which it stated its intention to provide the bank with full security for its claim, the time-limit was extended to 17 August 2000. In its reply of 15 August 2000 the company maintained that the claim was not clear and undisputed as it had appealed against the default judgment. It further maintained that it was not possible to examine in the course of the insolvency proceedings whether the bank had a claim against it. At this stage the company did not request an oral hearing. Nor did it contest the statement in the bank's appeal to the effect that the company had been represented by counsel at the District Court hearing.
On 4 September 2000 the Court of Appeal deliberated and it adopted a judgment. At noon on 11 September 2000 it delivered its judgment, quashing the lower court's decision and declaring the company insolvent based on a promissory note signed on 4 September 1996 and a request for payment with a risk of insolvency served on the company on 25 November 1999. The court held that according to established case-law a claim on the basis of a document liable for an action for debt (lainhaku, lagsökning) was considered clear and undisputed. In the present case, the bank had therefore a clear and undisputed claim against the company even if the default judgment was not taken into account. It sent the case back to the lower court for the execution of the winding-up proceedings.
According to the applicants and a report printed from their fax machine, at 11.35 a.m. on 11 September 2000 the company sent a fax to the Court of Appeal, in which, inter alia, an oral hearing in the matter was requested on the ground that the District Court had not heard the company or taken into account documentary evidence submitted by it before it rendered the above default judgment. According to a letter from the judicial secretary of the Court of Appeal, the above fax was received by the court only after it had rendered judgment. According to a report printed from the court's fax machine, it had been received at 1.30 p.m., i.e. only after the court had delivered its judgment, which it had done at noon.
The company sought leave to appeal and requested a stay of execution. On 5 October 2000 the Supreme Court refused a request for a stay of execution. On 21 November 2000 it refused leave to appeal.
In the subsequent winding-up proceedings there were several creditors. During these proceedings the applicant company instituted various civil proceedings against some of its creditors the outcome of which is not known. In its judgment of 9 April 2001 the District Court accepted most of the claims for payment made against the company and decided the priority order of the debts to be settled. It however found that the question of whether there was any foundation for the bank's claim and, if so, in what amount would first have to be decided in the re-trial of the default proceedings.
On 22 May 2001 the Court of Appeal upheld this decision and on 22 April 2002 the Supreme Court refused leave to appeal.
Under Finnish law there are various grounds on which a debtor can be declared insolvent. The petition can be lodged either by the debtor or a creditor.
Under the law applicable at the material time the court had to summon the debtor without delay to appear before it in order to express his or her opinion of the insolvency petition, either in a hearing or in a written submission. The debtor had to be declared insolvent unless the debtor proved that he or she could satisfy the creditor or provided acceptable security for the payment of the debt. Even if the debtor failed to appear before the court, it could declare him or her insolvent. It follows from the aim of insolvency proceedings that the debtor could always fend off an insolvency petition by paying the creditor applicant's claim or by producing security for it (section 6(2) of the then Insolvency Act).
A creditor, who could prove a clear and undisputed claim against the debtor, could petition to have the debtor declared insolvent if the debtor, having the capacity of a trader, had been urged, through a notary public or in the presence of witnesses, to pay an undisputed and due debt, but he or she had for eight days or longer neglected to satisfy the creditor (section 6 (1d) of the then Insolvency Act).
The Supreme Court has established precedents concerning the notion of “clear and undisputed claim”. The Government Bill (no. 26/2003) to Parliament as regards the enactment of the new Insolvency Act (Act no. 120/2004), which replaced the Insolvency Act in force at the material time, explained the case-law as follows. The word undisputed did not mean that the debtor had acknowledged the claim or that he did not dispute it. In case-law a claim was considered clear and undisputed if it was enforceable. A claim was considered clear and undisputed also if it was based on a document, which on its own fully evidenced it, for example a promissory note or a cheque, by the signing of which the debtor had committed himself or herself to paying the claim. However, if the debtor contested the claim with obvious justification, i.e. if he or she relied on circumstances that gave reason to suspect that the claim was ill-founded, it could not form the basis for the decision to declare the debtor insolvent.
The court was obliged to hold a hearing when the matter required the hearing of witnesses or others in person (section 3 as amended by Act no. 1054/1991 of the Petitionary Matters in District Courts Act (laki hakemusasioiden käsittelystä yleisessä alioikeudessa, lag om behandling av ansökningsärenden vid allmän underrätt; Act no. 307/1986).
Under the law in force at the material time the Court of Appeal was obliged to hold a hearing if a party so requested unless it was manifestly unnecessary. This provision applied, in relevant part, also when hearing an appeal lodged in a petitionary matter. The Court of Appeal had to hold a hearing regardless of whether one had been requested, if the case turned on the credibility of the testimony received or the findings made in an inspection in situ held by the District Court, or on new testimony to be produced in the Court of Appeal. In this event, the Court of Appeal had to receive the same evidence as had been received in the District Court unless there was an impediment to doing so (Chapter 26, Articles 14 and 15, as amended by Act no. 165/1998 and as in force at the material time, of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken)). The appellate court has to examine an insolvency petition expeditiously.
Written observations to the Court of Appeal may be sent by fax. Such a submission is considered to have reached the court at the point when it is available in the court's fax machine. If there is no clarification of that time, the time it was sent is also considered to be the time of receipt (section 3 of the Electronic Communication in Legal Proceedings Act (laki sähköisestä viestinnästä oikeudenkäyntiasioissa, lag om elektronisk telekommunikation i rättegångsärenden; Act no. 594/1993).


ITEMID: 001-76933
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: SAPUNARESCU v. GERMANY
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Peer Lorenzen
TEXT: The applicant, Mr Mihail Sorin Sapunarescu, is a Romanian national who was born in 1968 and lived in Bucharest, Romania. When lodging his application he was detained in Butzbach, Germany.
The applicant, who described himself as a “Jewish Christian”, was working as an informer for the Romanian Intelligence Service and the U.S. Drug Enforcement Administration (DEA).
On 17 July 2001 the applicant was arrested in Frankfurt a. M. in the presence of “VP 1”, an informer working for the Hessian Office of Criminal Investigation who had pretended wanting to buy ecstasy tablets. The applicant was taken into detention on remand on suspicion of having trafficked in drugs.
On 9 July 2002 the trial on charges of drug trafficking was opened against the applicant and two co-defendants.
The informer “VP 1” could not be heard as a witness in person as the Hessian Ministry for the Interior had made a declaration refusing the informer permission to testify in court (Sperrerklärung). The Ministry had argued that it was necessary to keep secret the identity of the informer in order to protect his life and limb as the applicant had threatened the informer with reprisals if something went wrong in the course of the drug deal.
Therefore, the statements “VP 1” had made to the Hessian Office of Criminal Investigation were read out in the hearing. “VP 1” submitted that he had travelled to Romania twice, not on the police’s instruction, but merely in order to visit his friend “X”. In Romania he had met various persons, acquaintances of “X”, who had proposed to sell drugs to him. He did not wish to disclose the identity of “X” for fear of reprisals by the organizers of the drug deal. In Frankfurt a. M. he had then met the applicant who had offered him 115,000 ecstasy tablets which had been delivered by the applicant’s two accomplices the next day.
On 11 July 2002 the applicant’s lawyer requested the court to interrogate the informer “VP 1” or to have him interrogated as to the identity and address of “X”. He wished to question “X” as a witness in order to prove that “VP 1” had willingly and illegally provoked the drug deal in Romania on the instructions of the German police. The Regional Court dismissed the applicant’s motion, arguing that it was not necessary to investigate the identity of “X”. However, a catalogue of other questions were submitted to the police officer S., who was supervising “VP 1”, by the court on the applicant’s request and the answers given by “VP 1” were subsequently read out in court.
On 30 July 2002 the Frankfurt a. M. Regional Court convicted the applicant of joint drug trafficking and sentenced him to five years and three months’ imprisonment. It based its findings of fact on the applicant’s confession and that of his two co-defendants as well as on the evidence given by two eye-witnesses, the informer “VP 1” and another informer (who had also been refused permission to testify in court) whose statements had been read out in the hearing. It found that, despite the caution necessary when a witness could not be questioned personally in court and his statements were merely read out, the informers had to be considered as credible. In assessing their credibility, the court took into account the oral statements made by the police officer S. supervising them. S. had stated, in particular, that he knew “VP 1” already for a long time, had checked the trustworthiness of his statements on several occasions and had also observed him on one occasion when he met the applicant in Germany.
In its judgment, the Frankfurt a. M. Regional Court dismissed a further motion of the applicant to have “X” questioned. Because of the declaration made by the Hessian Ministry for the Interior refusing “VP 1” permission to testify, the court had been unable to question him. Both the questioning of “VP 1” on the identity of “X” and that of “X” would lead to the disclosure of the identity of “VP 1”, which would be detrimental to the welfare of the Federal Republic or the Land Hesse.
In fixing the applicant’s sentence, the Frankfurt a. M. Regional Court took into consideration as a mitigating factor that the drug deal had been monitored by the police from the outset so that it was not very likely that the drugs could ever be circulated.
On 7 March 2003 (decision served on 18 March 2003) the Federal Court of Justice dismissed the applicant’s appeal on points of law as ill-founded.
On 15 April 2003 the applicant lodged a complaint with the Federal Constitutional Court. He argued that his rights under Articles 1 and 2 of the Basic Law, read in conjunction with the rule of law, which enshrined the rights protected by Article 6 § 3 (d) of the Convention, were violated by the decision of the Federal Court of Justice. He argued that the Regional Court’s refusal to have the informer “VP 1” and “X” questioned violated his right to have witnesses against him examined and restricted his defence rights. The illegal provocation of the drugs deal by “VP 1” on instructions of the German police, which would have been proved on examination of these witnesses, would at least have led to a significant reduction of his sentence.
On 14 August 2003 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint. It held that the complaint had no prospects of success as it was ill-founded.
The Federal Constitutional Court found that the applicant’s right to a fair trial in accordance with the rule of law under Articles 2 § 1 and 20 § 3 of the Basic Law had not been violated in the proceedings at issue. It argued that in cases in which a witness was refused permission to testify the defendant’s rights could adequately be protected by submitting questions to the witness in writing which the latter had to answer in an adequate manner. In so far as the responses to the questions could not lead to the disclosure of the witness’s identity, a court was not authorised generally to refuse the defendant or his defence counsel questioning the witness in this way.
However, the Federal Constitutional Court found that in the present case the rejection of the motion to take evidence was justified. The witness “VP 1”, when interrogated by the police, had already stated that he would not disclose the identity of “X”. Due to the refusal to give the witness permission to testify the Regional Court had no means to force him, if necessary by the imposition of a fine or by arrest for disobedience to a court order pursuant to section 70 of the Code of Criminal Procedure, to disclose what he knew. In practice, a renewed police interrogation of the informer would therefore not have caused him to make further statements as to the identity of “X”.


ITEMID: 001-72970
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF HRUSTELJ v. SLOVENIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: David Thór Björgvinsson;John Hedigan
TEXT: 5. The applicant was born in 1971 and lives in Vitanje.
6. On 28 April 1993 the applicant was injured in an accident at work. The applicant’s employer had taken out insurance with the insurance company ZT.
7. On 2 June 1994 the applicant instituted civil proceedings against ZT in the Celje Basic Court, Slovenske Konjice Unit (Temeljno sodišče v Celju, Enota v Slovenjskih Konjicah) seeking damages in the amount of 5,075,000 tolars (approximately 21,000 euros) for the injuries sustained.
On 1 January 1995 the Celje District Court (Okrožno sodišče v Celju) gained jurisdiction in the case due to the reform of the Slovenian court system.
At an undetermined time in 1996, the presiding judge was appointed to the Celje Higher Court (Višje sodišče v Celju) and the case was assigned to a new judge.
Between 14 July 1994 and 27 March 1997 the applicant made six requests that a date be set for a hearing. During this time he lodged six preliminary written submissions and/or adduced evidence.
Of the six hearings held between 7 June 1995 and 2 October 1998 none was adjourned at the request of the applicant.
During the proceedings the court appointed a medical expert.
At the last hearing the court decided to deliver a written judgment. The judgment, upholding the applicant’s claim in part, was served on the applicant on 29 December 1998.
8. On 31 December 1998 the applicant appealed to the Celje Higher Court (Višje sodišče v Celju). ZT cross-appealed.
On 12 May 1999 the court allowed both appeals in part and lowered the damages awarded.
The judgment was served on the applicant on 17 July 1999.
9. On 30 July 1999 the applicant lodged an appeal on points of law with the Supreme Court (Vrhovno sodišče). On 14 April 2000 he sought a recusal of one of the judges.
On 23 May 2000 the president of the court rejected the request for a recusal.
On 1 July 2000 the court dismissed the applicant’s appeal.
The judgment was served on the applicant on 17 July 2000.
10. On 27 July 2000 the applicant lodged a constitutional appeal.
On 11 June 2001 the Constitutional Court (Ustavno sodišče) dismissed the applicant’s appeal. The decision was served on the applicant on 4 July 2001.
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-104685
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF EDITORIAL BOARD OF PRAVOYE DELO AND SHTEKEL v. UKRAINE
IMPORTANCE: 1
CONCLUSION: Preliminary objection joined to merits and dismissed;Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Non-pecuniary damage - award
JUDGES: Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger
TEXT: 4. The first applicant is the editorial board of Pravoye Delo, a newspaper officially registered in Odessa in May 2000. The second applicant is the editor-in-chief of Pravoye Delo. He lives in Odessa.
5. At the material time Pravoye Delo was a local newspaper published three times a week with a circulation of 3,000 copies. It published reports and material on political and social matters in Ukraine and, in particular, the Odessa Region. Due to lack of funds, the newspaper often reprinted articles and other material obtained from various public sources, including the Internet.
6. On 19 September 2003 Pravoye Delo published an anonymous letter, allegedly written by an employee of the Security Service of Ukraine, which the second applicant’s colleague, Ms I., had downloaded from a news website. The letter contained allegations that senior officials of the Odessa Regional Department of the Security Service had been engaging in unlawful and corrupt activities, and in particular that they had connections with members of organised criminal groups. One of the paragraphs of the letter read as follows:
“... The Deputy Head of [the Odessa Regional Department of the Security Service] [I. T.], a close friend and assistant of the Head of the Department P., established ‘business’ contacts with [the organised criminal group] of [A. A.] ... A member of [the organised criminal group] G. T., an agent of [A. A.], who is in charge of the main areas of activities of the gang [is] a coordinator and sponsor of murders, [he] meets with [I. T.] and resolves financial issues for the top officials of the Department of [the Security Service] in the Odessa Region ...”
7. The letter was followed by these comments, prepared by Ms I. on behalf of the editorial board:
“When publishing this letter without the knowledge and consent of the editor-inchief, I understand that I may not only face trouble ... but I may also create problems for the newspaper. Because, if this letter is [misinformation], then [the media], in which it appears may be endangered. On the other hand, if this letter is genuine, then its author faces a higher risk. Besides, given that this anonimka [anonymous letter] has already been published on the Odessa website Vlasti.net (to which we refer, in accordance with their requirement), we have the blessing of God [to publish it]. We are proceeding on the understanding that, in accordance with the Act on Democratic Civil Control over the Military Organisation and Law-Enforcement Organs of the State, we are carrying out civil control and, under section 29 of the Act, we would like to receive open information concerning the facts described in this letter from the relevant authorities. Moreover, [it is to be noted] that the Department [of the Security Service] in the Odessa Region did not react to an analogous publication in the Top Secret [newspaper] ... I remind [you] that the [Pravoye Delo] newspaper ... is wide open for letters in reply and comments from all interested agencies.”
8. In October 2003 G. T., who lived in Odessa at the time and was the President of the Ukraine National Thai Boxing Federation, brought defamation proceedings in the Prymorskiy District Court of Odessa against the applicants. G. T. alleged that the information in the 19 September 2003 issue of Pravoye Delo concerned him, and that it was untrue and had damaged his dignity and reputation. He asked the court to order the applicants to publish a retraction and an apology and to pay him compensation for non-pecuniary damage in the amount of 200,000 Ukrainian hryvnias (UAH).
9. The applicants first argued before the court that they were not responsible for the accuracy of the information contained in the material that they had published, as they had reproduced material published elsewhere without making any modifications. The publication contained a reference to the source of the material and was followed by comments explaining the editors’ position regarding the material and inviting comments from the persons and bodies concerned. The applicants also submitted that if the court were to award G. T. the amount of compensation he had claimed, the newspaper would become insolvent and would have to close.
10. Subsequently, at a hearing on 24 April 2004, the second applicant stated that the article was not about the claimant and that its wording did not necessarily establish that it was a particular “G. T.” who was being referred to.
11. On 7 May 2004 the court ruled against the applicants. It found that the information at issue did concern the claimant, who was a public figure involved in public activities in the Odessa Region and had represented Ukraine at sports events abroad in his capacity as President of the Ukraine National Thai Boxing Federation. In that context, the court noted that this had not been contested by the applicants in their initial submissions and that the publication was about the activities of the Security Service in the Odessa Region. The court further held that the content was defamatory and that the applicants had failed to prove that it was true. It found no grounds on which to exempt the applicants from civil liability under section 42 of the Press Act, as the Internet site to which they had referred was not printed media registered pursuant to section 32 of the Press Act.
12. The court ordered the first applicant to publish a retraction of the following content of the publication:
“... A member of [the organised criminal group], G. T., an agent of [A. A.], who is in charge of the main areas of activities of the gang [is] a coordinator and sponsor of murders, [he] meets with [I. T.] and resolves financial issues for the top officials of the Department [of the Security Service] in the Odessa Region ...”
13. The court further ordered the second applicant to publish an official apology in the newspaper.
14. In determining the amount of compensation to be paid to the claimant, the court considered the submissions of the latter and the information concerning the financial situation of the newspaper. It noted that its gross annual income was about UAH 22,000 and found it reasonable to order the applicants jointly to pay G. T. UAH 15,000 for nonpecuniary damage. The applicants were also ordered to pay to the State Budget UAH 750 in court fees.
15. The applicants appealed. They maintained the submissions they had made before the first-instance court and also contended that the editorial board had not been registered as a legal entity pursuant to the relevant regulations on registration of the media and that the second applicant had not been appointed as editor-in-chief in accordance with the law. Thus, in their view, they could not take part in the proceedings.
16. The applicants further argued that invoking their civil liability was contrary to section 41 of the Press Act and section 17 of the Act on State Support of Mass Media and Social Protection of Journalists, stating that they had not intended to defame G. T. and that, by publishing the material, they had wished to promote public discussion of the issues raised in that material which were of significant public interest. According to them, it was their duty to disseminate the material and the public had a right to receive it.
17. The second applicant also submitted that he had not authorised the publication of the material at issue and that the legislation did not provide for an obligation to apologise as a sanction for defamation.
18. On 14 September 2004 and 24 February 2005, respectively, the Odessa Regional Court of Appeal and the Supreme Court rejected the applicants’ appeals and upheld the judgment of the first-instance court.
19. On 3 July 2006 the applicants and G. T. concluded a friendly-settlement agreement, pursuant to which the latter waived any claim in respect of the amount of compensation awarded in the judgment of 7 May 2004. The applicants, for their part, undertook to cover all the costs and expenses relating to the court proceedings and to publish in Pravoye Delo promotional and informational materials at G. T.’s request, the volume of which was limited to the amount of compensation under the judgment.
20. In 2008 the applicants discontinued publishing Pravoye Delo.
21. Relevant extracts from the Constitution read as follows:
“... Everyone is guaranteed judicial protection of the right to rectify incorrect information about himself or herself and members of his or her family, and of the right to demand that any type of information be rectified, and also the right to compensation for pecuniary and non-pecuniary damage inflicted by the collection, storage, use and dissemination of such incorrect information.”
“Everyone is guaranteed the right to freedom of thought and speech, and to the free expression of his or her views and beliefs.
Everyone has the right to freely collect, store, use and disseminate information by oral, written or other means of his or her choice.
The exercise of these rights may be restricted by law in the interests of national security, territorial indivisibility or public order, with the purpose of preventing disturbances or crime, protecting the health of the population, the reputation or rights of other persons, preventing the publication of information received confidentially, or maintaining the authority and impartiality of justice.”
22. Relevant extracts from the Civil Code read as follows:
“A citizen or an organisation shall be entitled to demand in a court of law that material be retracted if it is not true or is set out untruthfully, degrades their honour and dignity or reputation, or causes damage to their interests, unless the person who disseminated the information proves that it is true ...
A citizen or an organisation concerning whom material has been disseminated that is untrue and damages their interests, honour, dignity or reputation shall be entitled to request compensation for pecuniary and non-pecuniary damage as well as a retraction of such information ...”
23. The provisions of the Civil Code of 2003 pertinent to the case read as follows:
1. Everyone has the right to apply to a court of law for the protection of his or her ... rights and interests.
2. The means of protection of civil rights and interests may include:
1) recognition of the right;
2) declaration of nullity of an act;
3) cessation of actions violating the right;
4) restoration of the situation which existed prior to the violation;
5) specific performance of an obligation;
6) modification of legal relations;
7) discontinuance of legal relations;
8) compensation for [pecuniary] damage ...;
9) compensation for [non-pecuniary] damage;
10) declaration of unlawfulness of a decision or action or of inactivity of a State body;
...
The court may give protection to the civil right or interest by other means envisaged by a contract or law.
...”
“1. A physical person whose non-pecuniary rights have been infringed as a result of dissemination of untrue information about him or her and/or members of his or her family shall have the right to reply and [the right to] the retraction of that information.
...
3. Negative information disseminated about a person shall be considered untrue if the person who disseminated it does not prove the contrary.
4. Untrue information shall be retracted by the person who disseminated it ...
5. If the untrue information is contained in a document which has been accepted (issued) by a legal entity, that document shall be recalled.
6. A physical person whose non-pecuniary rights have been infringed in printed or other mass media shall have the right to reply and also [the right to] the retraction of the untrue information in the same mass media, in the manner envisaged by law ...
Untrue information shall be retracted irrespective of whether or not the person who disseminated it is guilty.
7. Untrue information shall be retracted in the same manner as it was disseminated.”
24. Relevant extracts from the Information Act provided, as worded at the material time, as follows:
“Printed mass media are periodical prints (press) – newspapers, magazines, bulletins – and occasional prints with a set circulation.
Audiovisual mass media are radio, television, cinema, audio, video recordings and so on.
The procedure of establishing ... of particular media shall be determined by the laws concerning such media.”
“...
Liability for infringement of the legislation on information shall be borne by persons responsible for the following infringements:
...
dissemination of untrue information that defames the honour and dignity of a person ...”
“If physical or legal persons have suffered pecuniary or non-pecuniary damage caused by an offence committed by an entity engaged in informational activities, those responsible [for the offence] shall compensate [for the damage] voluntarily or pursuant to a court decision ...”
25. Relevant extracts from the Press Act provide:
“Printed mass media (press) in Ukraine, as referred to in this Act, are [defined as] periodical and continuing publications issued under a permanent name [at least] once a year pursuant to a certificate of State registration ...”
“Entities engaged in printed mass media activities shall include [their] founders (or co-founders), editors (or editors-in-chief), editorial boards ...”
“The editorial board ... shall prepare and issue printed mass media under the instructions of its founder (or co-founders).
The editorial board shall act on the basis of its organisational charter and shall implement the programme of the printed mass media approved by its founder (or cofounders).
The editorial board ... shall acquire the status of a legal entity from the day of State registration, which shall be carried out in accordance with the legislation of Ukraine.”
“The editor (or editor-in-chief) ... shall be the head of the editorial board, authorised by the founder (or co-founders).
The editor (or editor-in-chief) ... shall manage the editorial board’s activities within his competence, as envisaged by its organisational charter, shall represent the editorial board in its relations with the founder (or co-founders), the publisher, authors, State organs, associations of citizens, and individual citizens, as well as before the courts and arbitration tribunals and shall be responsible for compliance with the [legislative] requirements as to the activities of the printed media, its editorial board ...”
“... All printed mass media in Ukraine shall be subject to State registration, irrespective of the area of its dissemination, circulation and the manner of its creation ...”
“Every issue of printed mass media shall contain the following publishing data:
(1) name of publication ...
Distribution of [publications] without publishing data shall be prohibited.”
“Citizens, legal entities and State organs, and their legal representatives shall have the right to demand that the editorial board of the printed mass media publish a retraction of information disseminated about them which is untrue or defames their honour and dignity.
If the editorial board does not have any evidence that the content published by it is true, it must, if requested by the claimant, publish a retraction of such information in the next issue of the printed mass media in question or publish the retraction on its own initiative ...”
“Editorial boards, founders, publishers, distributors, State organs, organisations and associations of citizens shall be liable for infringements of the legislation on the printed mass media.
Infringements of Ukrainian legislation on the printed mass media are:
1) violations envisaged by section 47 of the Information Act ...
For such an infringement the guilty party shall incur disciplinary, civil, administrative or criminal liability in accordance with the current legislation of Ukraine.
The journalist ... editor (or editor-in-chief) or other persons with whose permission the material which violates this Act has been published shall bear the same liability for abuse of the freedom of the printed mass media as the authors of that material.”
“The editorial board and journalists are not liable for the publication of material that is untrue, defames the honour and dignity of citizens and organisations, infringes the rights and lawful interests of citizens, or constitutes abuse of the freedom of the printed mass media and the rights of journalists if
1) the information has been received from news agencies or from the founder (cofounders) [of the media source];
2) the information is contained in a reply given in accordance with the Information Act to a request for access to official documents and to a request for written or oral information;
3) the information is a verbatim reproduction of official speeches of the officials of State organs, organisations and associations of citizens;
4) the information is a verbatim reproduction of material published by other printed mass media and contains a reference to [the latter];
5) the information contains secrets that are specifically protected by law, where the journalist has not obtained this information unlawfully.”
26. Relevant extracts from the Act provide:
“... In the process of consideration by a court of a dispute concerning non-pecuniary damage between a journalist or mass media, as a defendant party, and a political party, electoral bloc, [or] an office holder (or office holders), as a claimant, the court may award compensation in respect of non-pecuniary damage only if the journalist or officials of the media [acted] intentionally. The court shall take into account the outcome of the use by the claimant of extrajudicial, in particular pre-trial, opportunities for retraction of untrue material, defending his honour and dignity and reputation, and settlement of the entire dispute. Having regard to the circumstances, the court may refuse compensation in respect of non-pecuniary damage.
The intention of the journalist and/or official of the media means his or their stance with regard to dissemination of information where the journalist and/or official of the media are aware that the information is untrue and have anticipated its socially injurious consequences.
The journalist and/or the mass media shall not incur liability for dissemination of untrue information if the court establishes that the journalist acted in good faith and checked the information.”
27. The relevant extracts from the Resolution of the Plenary Supreme Court read as follows:
“26. Under Article 19 of the Constitution of Ukraine, the legal order in Ukraine is based on [the principle] according to which no one shall be forced to do what is not envisaged by the legislation. In turn, Article 34, paragraph 1, of the Constitution of Ukraine guarantees everyone the right to freedom of thought and speech, and to the free expression of his or her views and beliefs.
A court has no power to oblige a respondent to apologise to a claimant ... as a forced apology is not envisaged by Articles 16 [and] 277 [of the Civil Code of 2003] as a means of judicial protection of honour, dignity, [and] business reputation [in case of] dissemination of untrue information.”
28. The Supreme Court confirmed the Plenary’s approach in a defamation case, having quashed the lower courts’ decisions by which a respondent was ordered, inter alia, to apologise as legally unfounded. In particular, the relevant extract of the Supreme Court’s judgment (dated 17 June 2009) reads as follows:
“...
The court[s] are not entitled to oblige a respondent to apologise to a claimant in one form or another, as Articles 16 [and] 277 [of the Civil Code of 2003] do not provide for a forced apology as a means of judicial protection of honour, dignity, [and] business reputation [in case of] dissemination of untrue information; compulsion of a person to change his/her beliefs is an interference with the freedom of speech and expression guaranteed by the Constitution of Ukraine and Article 10 of the Convention ...”
29. At their 1010th meeting on 7 November 2007 the Ministers’ Deputies considered essential aspects of the use of new information and communication technologies and services, in particular the Internet, in the context of protection and promotion of human rights and fundamental freedoms. They acknowledged the increasingly important role the Internet was playing in providing diverse sources of information to the public and people’s significant reliance on the Internet as a tool for communication.
30. It was noted however that the Internet could, on the one hand, significantly enhance the exercise of human rights and fundamental freedoms, such as the right to freedom of expression, while, on the other hand, the Internet might adversely affect other rights, freedoms and values, such as the respect for private life and secrecy of correspondence and for the dignity of human beings.
31. The Ministers’ Deputies adopted recommendations to the Council of Europe’s member states with regard to the governance of the Internet. These included recommendation to elaborate a clear legal framework delineating the boundaries of the roles and responsibilities of all key stakeholders in the field of new information and communication technologies and to encourage the private sector to develop open and transparent self- and co-regulation on the basis of which key actors in this field could be held accountable.
32. The growing importance of the Internet as a vehicle for facilitating in practice the free flow of information and ideas was also recognised in the Joint Declaration issued by Mr A. Ligabo, Mr M. Haraszti and Mr E. Bertoni. They stressed the need for strict application of international guarantees of freedom of expression to the Internet. In that context, it was stated that no one should be liable for content on the Internet of which they were not the author, unless they had either adopted that content as their own or refused to obey a court order to remove that content.
VIOLATED_ARTICLES: 10
VIOLATED_PARAGRAPHS: 10-1