ITEMID: 001-101959
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF KASCAK v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Ján Šikuta;Lech Garlicki
TEXT: 4. The applicant was born in 1931 and lives in Prešov.
5.
6. On 23 March 2000 the applicant claimed a sum of money before the Prešov District Court.
7. On 5 April 2001 the District Court issued a payment order in summary proceedings. As the defendant filed an objection to the order, the court started dealing with the case in ordinary proceedings.
8. On 10 November 2004 the District Court dismissed the action. On 10 February 2005 it submitted the case to the court of appeal following the applicant's appeal.
9. On 24 August 2005 the Constitutional Court found that the District Court had violated the applicant's right under Article 6 § 1 of the Convention to a hearing within a reasonable time. The case was not complex and the applicant by his conduct had contributed to the length of the proceedings by not responding to a District Court' request and by asking for adjournment of three hearings. The Constitutional Court also concluded that the District Court had failed to proceed with the case in an efficient manner. It held that in view of the very simple legal question to be determined and the value of the claim, the court was obliged to organise its work in a way enabling it to decide the case within one hearing.
10. The Constitutional Court refused to award the applicant just satisfaction in respect of non-pecuniary damage since the case had already been decided by the first-instance court and the applicant had contributed to the length of the proceedings. It ordered the District Court to avoid any further delay in the proceedings (should the case be returned to it) and to reimburse the applicant's legal costs.
11. On 14 September 2005 the court of appeal upheld the first-instance judgment.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-72154
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF KEZER AND OTHERS v. TURKEY
IMPORTANCE: 4
CONCLUSION: Partly inadmissible under Art. 6-1 (civilian judges on state security court and Court of Cassation);Violation of Art. 6-1 (military judge on state security court);Not necessary to examine other admissible complaints under Art. 6;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 5. The applicants were born in 1960, 1969, 1951, 1961 and 1964 respectively and live in İzmir.
6. On 2 June 1995 Nedim Öndeş, Arap Doğan, Ferhan Özçelik and Selhan Tekin were arrested and taken into custody by the Anti-Terror branch of the İzmir Security Directorate on suspicion of aiding and abetting an illegal organisation. On 6 June 1995 Yahya Kezer was arrested and taken into custody by the same police officers on the same grounds.
7. On 14 June 1995 the applicants were brought before the İzmir State Security Court. The court ordered their remand in custody.
8. On 10 July 1995 the public prosecutor at the İzmir State Security Court filed a bill of indictment accusing Yahya Keser and Nedim Öndeş of membership of an illegal organisation and the other applicants of aiding and abetting an illegal organisation. He requested that Yahya Keser and Nedim Öndeş be convicted and sentenced under Article 168 §2 of Criminal Code and Article 5 of Law no. 3713. In respect of the other applicants, the public prosecutor requested that they be convicted and sentenced under Article 169 of Criminal Code and Article 5 of Law no. 3713.
9. On 22 July 1997 the İzmir State Security Court convicted the applicants as charged and sentenced Yahya Keser to fifteen years, Nedim Öndeş to fourteen years and seventeen months, Arap Doğan to two years and eleven months and Ferhan Özçelik and Selhan Tekin to three years and nine months’ imprisonment.
10. On 7 July 1998 the Court of Cassation quashed the judgment of the İzmir State Security Court for non-compliance with procedural rules.
11. On 3 December 1998 the İzmir State Security Court convicted the applicants as charged and sentenced Yahya Keser to fifteen years’ imprisonment, Nedim Öndeş to fourteen years’ and seventeen months’ imprisonment and the other applicants to three years’ and nine months’ imprisonment.
12. On 18 October 1999 the Court of Cassation held a hearing and upheld the judgment of the İzmir State Security Court. On 18 November 1999 the judgment of the Court of Cassation was deposited with the registry of the İzmir State Security Court.
13. The relevant domestic law and practice in force at the material time are outlined in the following judgments: Özel v. Turkey (no. 42739/98, §§ 20-21, 7 November 2002) and Gençel v. Turkey (no. 53431/99, §§ 11-12, 23 October 2003).
14. By Law no. 5190 of 16 June 2004, published in the Official journal on 30 June 2004, the State Security Courts have been abolished.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-61282
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF MARIGLIANO v. ITALY
IMPORTANCE: 4
CONCLUSION: Violation of P1-1;Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 4. The applicant was born in 1946 and lives in Rome.
5. She is the owner of a flat in Coperchia (Salerno), which she had let to F.T.
6. In a registered letter of 12 June 1993, the applicant informed the tenant that she intended to terminate the lease on expiry of the term on 30 August 1994 and asked him to vacate the premises by that date.
7. In a writ served on the tenant on 28 June 1993, the applicant reiterated her intention to terminate the lease and summoned the tenant to appear before the Salerno Magistrate. The tenant told the applicant that he would not leave the premises.
8. By a decision of 6 July 1993, which was made enforceable on 22 February 1995, the Salerno Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 28 February 1995.
9. On 4 March 1995, the applicant served notice on the tenant requiring him to vacate the premises.
10. On 24 March 1995, she served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 3 April 1995.
11. On 3 April 1995, the bailiff made one attempt to recover possession, which proved unsuccessful, as the applicant was not entitled to police assistance in enforcing the order for possession.
12. On 2 January 1996, the applicant made a statutory declaration that she urgently required the premises as accommodation for herself.
13. On 8 January 1997, the applicant asked the Salerno Magistrate to be granted the assistance of the police in enforcing the order for possession.
14. On 8 May 1998, the Salerno Magistrate decided to grant the assistance of the police.
15. Between 16 July 1998 and 27 January 1999, the bailiff made five 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.
16. Pursuant to law no. 431/98, the enforcement proceedings were suspended.
17. On 20 February 2000, the applicant recovered possession of the flat.
18. Since 1947 the public authorities in Italy have frequently intervened in residential tenancy legislation with the aim of controlling rents. This has been achieved by rent freezes (occasionally relaxed when the Government decreed statutory increases), by the statutory extension of all current leases and by the postponement, suspension or staggering of the enforcement of orders for possession. The relevant domestic law concerning the extension of tenancies, the suspension of enforcement and the staggering of evictions is described in the Court’s judgment in the case of Immobiliare Saffi v. Italy [GC], no. 22774/93, §§ 18-35, ECHR 1999-V.
A. The system of control of the rents
19. As regards the control of the rents, the evolution of the Italian legislation may be summarised as follows.
20. The first relevant measure was the Law no. 392 of 27 July 1978 which provided machinery for “fair rents” (the so-called equo canone) on the basis of a number of criteria such as the surface of the flat and its costs of realisation.
21. The second step of the Italian authorities dated August 1992. It was taken in the view of progressive liberalisation of the market of tenancies. Accordingly, a legislation relaxing on rent levels restrictions (the so-called patti in deroga) entered into force. Owners and tenants were in principle given the opportunity to derogate from the rent imposed by law and to agree on a different price.
22. Lastly, Law no. 431 of 9 December 1998 reformed the tenancies and liberalised the rents.
Obligations of the tenant in the case of late restitution
23. The tenant is under a general obligation to refund the owner any damages caused in the case of late restitution of the flat. In this regard, Article 1591 of the Italian Civil Code provides:
“The tenant who fails to vacate the immovable property is under an obligation to pay the owner the agreed amount until the date when he leaves, together with other remaining damages”.
24. However, Law no. 61 of 1989 set out, inter alia, a limit to the compensation claimable by the owner entitling him to a sum equal to the rent paid by the tenant at the time of the expiration of the lease, proportionally increased according to the cost of living (Article 24 of Law n. 392 of 27 July 1978) plus 20%, along the period of inability to dispose of the possession of the flat.
25. In the judgment no. 482 of 2000, the Constitutional Court was called upon to decide whether such a limitation complied with the Constitution. The Constitutional Court held that it was compatible with the Constitution with regard to periods of time during which the suspension of the evictions was determined by law. The Constitutional Court explained that the introduction of that limitation was intended to settle the tenancies of the time of the emergency legislation, when the housing shortage made the suspension of the enforcement necessary. While evictions were suspended ex lege, the law predetermined the quantum of the reimbursement chargeable to the tenant, both measures being temporary and exceptional. Besides, the interests of the owner were counterbalanced by the exemption for him from the burden to prove the damages.
26. The Constitutional Court declared the limitation to the compensation claimable by the owner unconstitutional with regard to cases where the impossibility for the owner to repossess the flat depended on the conduct of the tenant and was not due to a legislative intervention. Accordingly, it opened the way to owners for the institution of civil proceedings in order to obtain full reparation of the damages caused by the tenant.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-81486
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: STEEN v. SWEDEN
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson
TEXT: The applicant, Ms Marie Steén, is a Swedish national who was born in 1957 and lives in Stockholm. She was represented before the Court by Mr U. Jacobson, a lawyer practising in Stockholm.
The Swedish Government (“the Government”) were represented by their Agent, Mr B. Sjöberg of the Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant suffers from Crohn’s disease (a disease marked by chronic inflammation of the colon).
On 23 February 1983 the Social Insurance Office (Försäkringskassan) in Jönköping granted her disability benefits (handikappersättning) at the level of 32% of the basic amount geared to the price index (basbeloppet) as from August 1982. On 18 November 1988 it decided to increase the benefits to the level of 50% as from November 1987 because of her extra costs incurred as a result of the disease.
In September 1998 the applicant applied for an increase of the disability benefits, as she claimed that her costs had increased further, inter alia, she had to follow a special diet, was dependent on medication and had extra expenses to be able to work.
On 20 April 1999 the Social Insurance Office granted the applicant an increase, to the level of 69% of the basic amount, as from October 1998. It noted that she had substantial extra costs due to her disease but that she did not have any need for assistance in her daily life. The applicant appealed to the County Administrative Court (länsrätten) of the County of Jönköping, demanding that the increase be paid retroactively as from August 1996. In a judgment of 22 October 1999, the court granted the appeal.
In the meantime, on 16 October 1999, the applicant requested the Social Insurance Office, under Chapter 20 section 10 (a) of the Social Insurance Act (Lagen om allmän försäkring, 1962:381 – hereinafter “the 1962 Act”), to change its decision of 18 November 1988, and to grant her disability benefits at the level of 65% of the basic amount retroactively from November 1987. She claimed that the original decision had been incorrect as all her extra costs had not been taken into account at the time.
On 10 December 1999 an official at the Social Insurance Office made a re-assessment of the decision of 18 November 1988, in accordance with the relevant provision of the 1962 Act, and decided to reject the request on the grounds that that decision had not been made on obviously incorrect or incomplete material. In this respect, the official noted that the Office had accepted all the extra costs, as specified by the applicant at the time, except certain reductions for food expenses.
The applicant appealed to the County Administrative Court, complaining that the Social Insurance Office’s decision should have been made by its board and not by a single official, for which reason the case should be returned to the Office for reconsideration by the board. In the alternative, she maintained her claim that she should granted disability benefits at the level of 65% of the basic amount retroactively from November 1987.
The Social Insurance Office submitted that its decision had been duly made, as a decision for re-assessment under Chapter 20 section 10 (a) of the 1962 Act could be made by a single official. It referred to both a judgment by the Supreme Social Insurance Court (ref. FÖD 1991:26) and a general opinion (allmänna råd 1998:14) issued by the National Social Insurance Board (Riksförsäkringsverket).
Following further submissions from the parties in which the applicant continued to question the legality of the Social Insurance Office’s decision and whether it had at all tried the case on the merits, the County Administrative Court, on 24 March 2000, sent her a letter (underrättelse), inter alia, informing her that it appeared from the Office’s decision that it had tried her request on the merits according to Chapter 20 section 10 (a) of the 1962 Act and that the decision had been made by an official at the Office who was competent to make such a decision. The court further gave the applicant four weeks in which to finalise her submissions.
In a letter of 30 March 2000, the applicant maintained her claims and added that she requested that an oral hearing be held in the case. She wished for the court to take appropriate measures to clarify how the Social Insurance Office had dealt with her case and, once she had received that information, she would consider whether she wanted to hear someone from the National Social Insurance Board before the court.
The parties made further submissions, in which the applicant maintained her request for an oral hearing and added that she wished for the official who had made the decision at the Social Insurance Office and a named person at the National Social Insurance Board to be heard in order to establish whether the Office’s decision had been duly taken.
In response to the applicant’s requests, the County Administrative Court, in September 2000, decided to ask the National Social Insurance Board to submit its opinion on the matter based on the applicant’s submissions. The Board delivered its opinion to the court in November 2000, and a supplementary opinion in February 2001. In these opinions, the Board agreed with the Social Insurance Office, with reference to its general opinions and to case-law, that the decision had been taken according to law.
The applicant still maintained her request for an oral hearing in order to clarify whether the Social Insurance Office’s decision had been taken in due order.
On 19 February 2001 the County Administrative Court invited the applicant to make her concluding submissions in the case and, on 22 February 2001, the applicant submitted that she maintained her claims and request for an oral hearing.
On 22 August 2001 the County Administrative Court rejected the appeal as well as the applicant’
On 26 September 2001 the applicant appealed to the Administrative Court of Appeal (kammarrätten) in Jönköping, relying on the same grounds as before the lower court, and developing her reasons further. Moreover, she complained that the County Administrative Court had not held an oral hearing in the case which was in breach of her rights under Article 6 of the Convention. In a further submission, received by the court on 15 November 2002, the applicant demanded that the Administrative Court of Appeal hold a hearing to clarify the contentious issues. The official at the Social Insurance Office should be heard about whether the case had been examined in substance and the Director-General of the National Social Insurance Board should be questioned about the Board’s position on decision-making competences, in general, at the Social Insurance Office.
The parties made further submissions to the Administrative Court of Appeal and, on 19 February 2003, it rejected the applicant’s request for an oral hearing as it considered that it was not necessary in order to decide whether or not to grant leave to appeal. The applicant was given three weeks to submit supplementary written pleadings, which she did.
On 14 April 2003 the Administrative Court of Appeal refused leave to appeal as it found no reasons to change the lower court’s judgment.
The applicant appealed against the decision to the Supreme Administrative Court (Regeringsrätten), maintaining her claims and adding that the lower courts had violated Article 6 of the Convention by not granting her an oral hearing. She also requested that the Supreme Administrative Court hold an oral hearing if it granted her leave to appeal.
On 28 February 2005, the Supreme Administrative Court refused leave to appeal.
According to Chapter 9, section 2, of the 1962 Act (as in force until 1 January 2001, when the 1998 Act on Disability Benefits and Care Allowance - lagen (1998:703) om handikappersättning och vårdbidrag – entered into force), a person who was ill or handicapped was entitled to disability benefits, provided that, before reaching the age of 65, he or she had been functionally impaired for a considerable time and to such a degree that he or she needed time-consuming assistance from another person in everyday life or continuing assistance in order to be gainfully employed or otherwise had considerable extra expenses. The total need for support and assistance determined the eligibility for disability benefits and the amount of compensation. It was thus necessary to look at the whole situation of the person in question and to add together the need for different types of assistance and the extra expenses. According to the guidelines of the National Social Insurance Board the total cost of all extra needs due to the disability should attain at least 28.5% of a basic amount geared to the price index in order to make the individual eligible for an allowance. In 1983, when the applicant was first granted the benefit, the basic amount was SEK 19,400 and, in 1999 when she was granted increased benefits, the basic amount was SEK 36,400.
According to Chapter 9, section 3, of the 1962 Act, as in force before 1 January 2001, such benefits were granted on a yearly basis at a level of 69%, 53% or 36% of the basic amount, depending on the extent to which the insured person was in need of assistance and the amount of extra expenses caused by the disability. Before 1 January 1991 the levels were 65%, 50% or 34% of the basic amount.
A decision by the Social Insurance Office under the 1962 Act may be appealed against to the County Administrative Court and from there on to the Administrative Court of Appeal and to the Supreme Administrative Court. Appeals may be made against the Office’s ordinary decisions or a decision upon review under Chapter 20, section 10 (a), of the 1962 Act.
The latter provision enables the Social Insurance Office to change a decision it has previously taken in order to rectify certain obvious defects of that decision, provided that it has not already been reviewed by a court. Thus, the Office must change its earlier decision if it contains a writing error, miscalculation or similar mistake or if it is incorrect due to it being based on obviously incorrect or incomplete information or an obviously incorrect application of the law or other similar reason. The question of changing a decision under section 10 (a) should, in principle, be raised within two years from the day the decision was taken. However, it may nevertheless be changed if it appears only after the elapse of this two-year period that it was based on obviously incorrect or incomplete material or if there are other exceptional reasons. A decision is to be changed under this provision even if a request to that effect has not been made by the individual concerned.
The procedure in the administrative courts is governed by the provisions of the Administrative Court Procedure Act (Förvaltningsprocesslagen, 1971:291 – hereinafter “the 1971 Act”). Section 9 provides:
“The proceedings shall be in writing.
An oral hearing may be held in regard to a certain issue, when there is reason to assume that that would assist in the proceedings or be conductive to the speedy determination of the case.
In the Administrative Court of Appeal and the County Administrative Court an oral hearing shall be held if requested by an individual party to the proceedings and if it is not unnecessary and there are no particular reasons against holding a hearing.”
The possibility for an individual party to obtain an oral hearing on request under those circumstances is not available in the proceedings before the Supreme Administrative Court.
From the case-law of the national courts, it appears that the grounds stated in the third paragraph of section 9 for refusing an oral hearing have been interpreted as being alternative rather than cumulative (see Regeringsrättens Årsbok 1997 ref 62).
According to the preparatory work to the 1971 Act, an oral hearing could be a valuable complement to the written proceedings and could benefit the examination of a case, in particular in two situations: firstly, when it was necessary to hear a witness, an expert or a party or when it was difficult for a party to present the case in writing and, secondly, when different positions in the case needed to be sorted out in order to eliminate unnecessary or pointless issues of dispute. In the latter case, the oral hearing takes on a preparatory character. It was stressed, however, that an oral hearing should not to be seen as an alternative to the written procedure but as a supplement to it (see Government Bill 1971:30, p. 535).
It was further stated, in respect of the third paragraph of section 9, that a party’s request for an oral hearing should be given close consideration. However, such a request should not have a decisive influence on the matter, as the question whether an oral hearing was necessary was to be determined primarily on the basis of the available information in the case. However, other circumstances could be of relevance, for instance the importance for the party of the matter at stake or the possibility that an oral hearing could enhance the party’s understanding of a future decision in the case. Nevertheless, if the case was of a trivial character or the costs of an oral hearing would be disproportionate to the value of what was at stake in the case, there could be reason not to hold an oral hearing (p. 537).
In recent years, it appears from the case law of the Supreme Administrative Court that it has set aside a number of decisions on appeal and granted leave to appeal in the administrative courts of appeal because an oral hearing has been denied in the lower courts (see, inter alia, Regeringsrättens Årsbok 2002 ref 23, Regeringsrättens Årsbok 2003 note 68, and Regeringsrättens Årsbok 2004 note 65).


ITEMID: 001-60169
LANGUAGEISOCODE: ENG
RESPONDENT: CHE
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF H.M. v. SWITZERLAND
IMPORTANCE: 1
CONCLUSION: No violation of Art. 5-1
JUDGES: Gaukur Jörundsson
TEXT: 9. The applicant, a Swiss citizen born in 1912, is a pensioner living in Worben (Switzerland).
10. Until 1994 the applicant, who draws an old-age pension, lived with her husband in a house belonging to He.M., one of her two sons, in Lyss in the Canton of Berne. As she was suffering from leg sores, she received help from the Lyss Association for Home Visits to the Sick and Housebound from 1987. In 1989 He.M. moved in.
11. In 1994, at their request, the applicant and her husband were placed under the guardianship (Beistandschaft) of their other son, A.M. However, He.M. objected to this. At the end of 1994 the applicant's husband moved into the S. Nursing Home at Worben in the Canton of Berne. It was agreed that the applicant would also move in within a week, but she did not do so.
12. On 29 March 1995 a new guardian, Mrs B.F., was appointed. At the applicant's request and in view of He.M.'s resistance to the new guardian, the guardianship order was discontinued in respect of the applicant on 28 June 1995, but the order in respect of her husband remained effective.
13. Early in 1996 the applicant's husband died.
14. On 9 February 1996 the Association for Home Visits to the Sick and Housebound wrote to the Lyss Guardianship Office (Vormundschafts-behörde), stating, inter alia:
“For the following reasons [the applicant's] treatment and care is causing increasing difficulty; for days now it has become impossible. Our programme is being disrupted: virtually every day we must stand outside a closed door and wait until He.M, her son, perhaps deigns to open it, scantily dressed. Frequently, we must try again at another time ... A collection of newspapers, cardboard boxes and full plastic bags makes it difficult for us to gain access to the equipment we need for our work ... If [the applicant] is bedridden, which she was from 28 January to 5 February 1996 because of the lack of heating in the rooms, we are unable to undertake even the minimum care of [her] on account of the chaos in the room [im räumlichen Debakel] ... We will be able to continue to provide care for [the applicant] until 29 February 1996. If [she] or her family wishes us to continue our services, this will be possible after 1 March 1996, but only on the following conditions:
1. We expect He.M. to open the door to us at the latest by 10 a.m., and to be properly dressed;
2. We expect heated rooms in winter in order to provide the necessary care;
3. We require space to be made available in [the applicant's] bedroom, and the spare bed, as well as the boxes and bags that are lying around, to be taken out, as they hinder our work; access to [the applicant's] bed must be free;
4. Once a month we wish to put fresh linen on [the applicant's] bed; He.M. shall wash the linen, or have it washed elsewhere;
5. If [the applicant] is bedridden, she should have a warm midday meal (to be provided by the home services of the old people's home).”
15. It appears that the applicant and He.M. did not respond to that proposal. On 29 February 1996 the Association for Home Visits to the Sick and Housebound stopped visiting them. Subsequently, following an eye operation, the applicant's eyesight deteriorated. From March 1996 the association's doctor ceased to visit the applicant, who continued to live with He.M.
16. On 13 December 1996 the Lyss Guardianship Commission (Vormundschaftskommission) requested the Aarberg District Government Office (Regierungsstatthalteramt) to place the applicant in an old people's nursing home.
17. On 16 December 1996 the Aarberg District Governor visited the applicant. The applicant explained that, as a rule, her son did the cooking and that she was given enough to eat. She could go to the toilet unassisted, and washed herself in the kitchen. Her leg sores were washed and treated by a woman who helped her. The applicant also stated that she did not wish to go to the S. Nursing Home.
18. On 17 December 1996 the Aarberg District Government Office ordered the applicant's placement for an unlimited period in the S. Nursing Home on account of serious neglect (schwere Verwahrlosung). The Office relied on Articles 397a et seq. of the Swiss Civil Code (Zivilgesetzbuch) and section 9 of the Deprivation of Liberty on Grounds of Welfare Assistance Act (Gesetz über die fürsorgerische Freiheitsentziehung) of the Canton of Berne. The order requested the municipal police, together with the health inspectors, to implement the order on 20 December. The order noted that the applicant required permanent treatment in view of her leg sores and cataract, that she no longer received care from a doctor or an association, and that it was not certain that she had enough to eat. The order, referring to intolerable conditions of hygiene in the unheated flat, stated that this situation, which had already lasted for many years, would not change in the foreseeable future.
19. On 20 December 1996 the applicant was placed in the S. Nursing Home in Worben.
20. The applicant and He.M., her son, each filed an appeal (Rekurs) with the Deprivation of Liberty on Grounds of Welfare Assistance Cantonal Appeals Commission (Rekurskommission) of the Canton of Berne. The Appeals Commission consisted of three judges, its president being a lawyer. The other two persons were specialised judges, one of whom, the rapporteur, was a doctor.
21. On 16 January 1997 the Appeals Commission conducted a hearing at which the applicant, He.M., their lawyer, a member of the Guardianship Commission and a representative of the S. Nursing Home were present. According to the record of the hearing, the applicant explained that she had no reason to be unhappy with the nursing home, that, as she could no longer walk, it would be better for her to stay there, and that she did not see how matters could get better for her. However, she also said that she “wanted to get out of S.”.
22. The Appeals Commission dismissed the appeals the same day. As to the facts it found:
“The situation at [the applicant's home] was apparently catastrophic, as even third parties found it necessary to file reports or make statements. It is noted in the file that lately [the applicant] had taken to staying in bed, her eyesight was very poor, and she could not walk or stand properly. According to her own submissions, she has to hold on to support wherever she goes. She needs a wheelchair, but does not have one at home. The flat was not heated, there was refuse everywhere, and no one was catering for meals. The nurse responsible for [the applicant's] care had already stated on a previous occasion that her leg sores had not healed because of her living conditions. The nurse now states that in the last weeks of care she had noticed a serious loss of body weight, which she attributed to the fact that [the applicant's son] was not taking sufficient care to ensure that his mother was eating properly. A certain Mr Hi., who had brought [the applicant] home after her stay in hospital, had been horrified by the state of the flat and said that it was not heated. The fruit vendor also reported that the situation was horrific. When Mrs B.F., the head of the social services, had been asked how [the applicant] responded to the nursing home, she had answered that she had been present when [the applicant] had arrived. At that time [the applicant] had not been able to walk, she was not properly dressed (she was wearing nylon tights and a torn woollen jacket) and smelled badly. Mrs B.F. was shocked and declared that she had never seen a person in such a state, although she had a long experience in guardianship matters.”
23. In its decision the Appeals Commission considered that two grounds had been made out under Article 397a of the Swiss Civil Code that justified withdrawing the applicant's liberty on grounds of welfare assistance. Firstly, the applicant had been neglected, as she was no longer able to tend to her most basic dietary and hygiene needs. She could not even dress herself. Without outside help she was confined to bed. Since the Association for Home Visits to the Sick and Housebound had stopped visiting, the problem was unresolved, particularly as the applicant refused to go into the S. Nursing Home voluntarily. In respect of the second ground, the Appeals Commission considered that “during the hearing it had come to the conclusion that the applicant had a mental disability (senile dementia)” (Geistesschwäche (altersbedingte Demenz)). In view of that disability, the Appeals Commission considered that the applicant's placement in a nursing home “would be justified even if it was considered that the degree of neglect was not sufficiently serious”. The decision continued:
“In this context, the appellants' argument is not helped by the fact that [the applicant] has accepted that she needs to go into a nursing home, as she explained during the appeal hearing. It is true that there would be no need for deprivation of liberty on grounds of welfare assistance if [the applicant] went to reside at the S. Nursing Home of her own free will. However, it transpires from the case file that although she has already frequently stated that she was now willing to enter S. voluntarily, finally this has not happened.”
24. In the Appeals Commission's view, if the applicant were released, she would return to her son, who was unable to provide sufficient care for her, as he was himself an invalid with poor eyesight. Yet, the S. Nursing Home, which could provide the necessary care, was ideal for the applicant as it was in an area she knew. Indeed, the applicant was hardly aware of the deprivation of liberty, which was minimal, and in fact it mainly affected her son, who did not want to leave his mother. The Appeals Commission further found that the deprivation of liberty on grounds of welfare assistance complied with Article 5 § 1 (e) of the Convention, since that provision also permitted a deprivation of liberty in cases of vagrancy, a term that was to be understood in a wide sense.
25. The applicant and her son He.M. lodged a public-law appeal (staatsrechtliche Beschwerde) which the Federal Court (Bundesgericht) dismissed on 15 May 1997. The decision was served on 17 June 1997.
26. In so far as the applicant and her son complained that the Appeals Commission had not examined whether less stringent measures were possible, the court found:
“The Commission concludes on the facts that the first appellant [the applicant] is no longer capable of looking after and caring for herself, feeding herself or even dressing herself; without outside help she would be confined to bed; the second appellant [the applicant's son] who is an invalid, and is in fact no longer able to see, is unable to look after her, and there is nobody else who is in a position to care for her; other attempts which have been made to resolve this problem have failed; in the end, placement in the S. Nursing Home at Worben has been considered to be the only means of preventing neglect. The Appeals Commission has therefore duly considered the proportionality of the deprivation of liberty ...
Whether in the case of the first appellant there exists, apart from serious neglect, some mental disability which would also justify a deprivation of liberty in itself – a point which is challenged by the appellants – and whether procedural rules have allegedly been breached in connection with this ground of detention, are matters which do not need to be examined, particularly as the appellants have been unsuccessful in their appeal against the [applicant's] detention for serious neglect.”
27. On 14 January 1998 the Aarberg District Government Office lifted the applicant's placement order as she had agreed to reside in the nursing home of her own free will.
28. Articles 397a et seq. of the Swiss Civil Code concern the withdrawal of liberty on grounds of welfare assistance (fürsorgerische Freiheitsentziehung). Article 397a provides:
“An elderly or incapacitated person may be placed or retained in a suitable institution on account of mental illness, mental disability, alcoholism, other addictions or serious neglect, if the person cannot otherwise be afforded the necessary personal care.
In this context, account must be taken of the burden which the person places on his or her environment.
The person concerned must be released as soon as the situation permits.”
29. Article 397e, which lays down the procedure in such cases, provides that “in the case of mentally ill persons a decision can only be taken on the basis of an expert opinion”.
30. The Deprivation of Liberty on Grounds of Welfare Assistance Act of the Canton of Berne implements Articles 397a et seq. of the Civil Code. Sections 3 et seq. of the Act concern “measures without deprivation of liberty”. Section 3 provides that the Guardianship Office (Vormundschafts-behörde) shall secure the necessary personal assistance for persons who put themselves or others in danger on account of mental illness, mental disability, alcoholism, other addictions or serious neglect. Under section 4, the Guardianship Office may order care measures if guardianship measures do not suffice; such measures may be renewed after two years and standard social-work procedures are to be followed. Sections 8 et seq. concern the “deprivation of liberty on grounds of welfare assistance”. Section 8 mentions, inter alia, the institutions in which such persons may be placed, namely a psychiatric clinic, a therapeutic home or a nursing home. Section 9 mentions the competent decision-making bodies, in particular the District Government Office.
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-1


ITEMID: 001-106265
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: GLINSKI v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: George Nicolaou;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano
TEXT: The applicant, Mr Andrzej Gliński, is a Polish national who was born in 1943, died in 2010 and lived in Kraków. He was represented before the Court by Mr R. Pasternak a lawyer practising in Kraków. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
From 1992, the applicant was the president of the board of directors of a company, Towarzystwo Wspólpracy Regionalnej Sp. z o.o. (Regional Cooperation Society Ltd). As a result of financial problems, the company went into liquidation on 28 January 2002.
In May 2002 the appointed trustee informed the Kraków District Court that the company had been making losses since 1998 and the bankruptcy petition should have been lodged much earlier.
On 20 November 2002 the Commercial Division of the Kraków District Court instituted of its own motion proceedings against the applicant for failure to comply with the insolvency procedure.
The court scheduled a hearing for 14 January 2004. However, the applicant did not participate in this hearing, as on that day and on the next day he appeared before the Warsaw District Court, where his presence was obligatory.
On 14 January 2004 the Kraków District Court gave a decision and barred the applicant from conducting any economic activity on his own account, from performing the functions of a representative or proxy of an entrepreneur, from being a member of the supervisory board and audit commission in a joint stock company, limited liability company or a cooperative for a period of four years. In addition it ordered that the applicant be listed in the insolvency register. The court considered that the applicant, acting as the president of the board of Towarzystwo Współpracy Regionalnej Sp. z o.o., had failed to comply with the insolvency procedure and had filed the petition for insolvency too late.
The applicant appealed against this decision.
At a hearing held on 21 April 2004 the Commercial Division of the Kraków Regional Court dismissed his appeal. The court held, in particular, that:
“The evidence gathered by the District Court of its own motion does not demonstrate that the applicant was not guilty of delaying the insolvency petition. In addition he was completely passive in the proceedings before the District Court.”
After pronouncement of the decision, the court informed the applicant’s representative that a cassation appeal was not available.
On 9 June 2004 the applicant’s representative filed a cassation appeal against the second-instance decision. He stressed that he had been aware of the Supreme Court’s case-law about unavailability of a cassation appeal in the proceedings under section 17² of the 1934 Insolvency Act. However, in his opinion, after Poland’s accession to the EU, the Supreme Court should re-examine the issue.
On 6 July 2004 the Kraków Regional Court rejected the cassation appeal as inadmissible in law. The court held that the proceedings had been instituted before 1 October 2003 and therefore the Insolvency Act 1934 applied. As it appeared from the Supreme Court’s case-law, it was not possible to file a cassation appeal against a decision of a second-instance court given pursuant to section 17² of the Insolvency Act.
The applicant appealed against this decision, arguing that the availability of a cassation appeal in the proceedings under section 17² of the Insolvency Act was not clear and emerged from the legal doctrine rather than from a clear provision of law. In addition, a new law on insolvency enacted in 2003 expressly provided for the possibility of filing a cassation appeal in a similar situation.
On 16 November 2004 the Supreme Court dismissed this appeal, upholding the decision of 6 July 2004. The court stressed that the new insolvency law of 28 February 2003 clearly provided that the proceedings instituted before 1 October 2003 should be examined under the 1934 insolvency law. In addition, it held that despite the applicant’s statements the current case-law was very clear about the unavailability of the cassation appeal. This decision was served on the applicant’s representative on 24 January 2005.
The Ordinance of the President of the Republic of Poland of 24 October 1934 – The Insolvency Act, as applicable at the material time – set out the rules governing insolvency proceedings. In so far as relevant it provided:
Section 5
“§ 1. An entrepreneur who has ceased to pay debts shall present, within no more than fourteen days thereof, a bankruptcy petition to the court.
§ 2. A representative of the entrepreneur referred to under section 1 paragraph 2 shall present a bankruptcy petition within fourteen days from the date when the assets have ceased to suffice to satisfy the debts unless the time-limit referred to under paragraph 1 has already begun to run.
(...).”
Section 17²
“§ 1. Any person who has not fulfilled the duty referred to under section 5 paragraph 1 or 2 shall be deprived, for two to five years, of the right to conduct economic activity on his own account and to perform the functions of a representative or proxy of an entrepreneur, member of the supervisory board and audit commission in a joint stock company, limited liability company or co-operative, unless the said person is not guilty thereof.
§ 2. Issues referred to under paragraph l shall be subject to adjudication by the court conducting the proceedings for declaration of bankruptcy.
§ 3. The court shall institute the proceedings of its own motion.
§ 4. The court shall issue the decision on having conducted a trial.
§ 5. The court’s decision on the ban referred to under paragraph 1 shall be subject to appeal.
§ 6. Issues referred to under paragraph l, as regards their scope not regulated under paragraphs 2 to 5 shall be subject to the provisions of the Code of Civil Procedure on non-litigious proceedings.”
On 4 July 2002 the Constitutional Court delivered a judgment and declared that section 17² was in compliance with the Constitution. While the court did not rule on what kind of liability it provided, it noted that section 17² did not provide for a criminal sanction.
On 28 February 2003, the new Law on Insolvency and Restructuring was enacted. The relevant provision is now regulated by section 373. Section 376 of that law expressly provides for the possibility of filing a cassation appeal against a decision of a second-instance court. However, according to the introductory provisions, the new law applied only to proceedings instituted after 1 October 2003.


ITEMID: 001-60493
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF WESSELS-BERGERVOET v. THE NETHERLANDS
IMPORTANCE: 1
CONCLUSION: Violation of Art. 14+P1-1;Just satisfaction reserved
JUDGES: Gaukur Jörundsson;Jean-Paul Costa
TEXT: 11. The applicant and her husband have always lived in the Netherlands. By a decision of 7 August 1984, the applicant's husband was granted a married man's old-age pension under the General Old Age Pensions Act (Algemene Ouderdomswet) commencing on 1 August 1984. However, pursuant to the then section 10 of the Act, his pension was reduced by 38% as neither he nor the applicant had been insured under the Act during nine periods between 1 February 1957 and 1 August 1977 when he had worked in Germany and had an old-age insurance under the German social-security legislation. These nine periods amounted in total to nineteen years. No appeal was filed against this decision.
12. After the applicant reached the age of 65 in 1989, the Board of the Social Insurance Bank (Sociale Verzekeringsbank), by a decision of 14 February 1989, granted the applicant an old-age pension under the General Old Age Pensions Act commencing on 1 March 1989. As had occurred with her husband's pension, her pension was also reduced by 38%. The applicant filed an appeal with the Arnhem Appeals Tribunal (Raad van Beroep), as it was then known, complaining that this reduction in her old-age pension constituted discriminatory treatment.
13. In its decision of 10 January 1990 the Appeals Tribunal noted that, under sections 7 and 9 of the General Old Age Pensions Act, a married person – like the applicant – who had been insured under this Act and had reached the age of 65 was entitled to an old-age pension amounting to 50% of the net minimum wage per month.
14. However, under the terms of section 13 of the Act, this amount could be reduced by 2% for each full year in which the person concerned had not been insured between the ages of 15 and 65. The Appeals Tribunal further noted that, according to section 6(1) of the Act, those insured were persons between the ages of 15 and 65 who were either resident in the Netherlands or, if not, were liable to payment of salaries tax (loonbelasting) in respect of work carried out in the Netherlands under a contract of employment. Under the present subsection 2 of section 6 of the Act, it was possible, by way of an Order in Council (Algemene Maatregel van Bestuur), to extend or limit the group of insured persons as an exception to the general rule contained in section 6(1).
15. The Appeals Tribunal referred to the case-law of the Central Appeals Tribunal (Centrale Raad van Beroep) to the effect that the question whether or not a person was insured under the General Old Age Pensions Act fell to be determined on the basis of the rules in force at the relevant time.
16. It further noted that, by virtue of five consecutive royal decrees on the extension and limitation of the group of insured persons (Koninklijke Besluiten Uitbreiding en Beperking van de kring der verzekerden) that had been issued under section 6(1) of the Act and had remained in force until 1 April 1985, persons residing in the Netherlands but working abroad under a contract of employment and insured under a foreign social-security scheme by virtue of that employment were not insured under the Act. That limitation also applied to a woman married to a person who, pursuant to those royal decrees, was not insured under the Act.
17. The Appeals Tribunal noted that it was not in dispute that, during the relevant periods, the applicant's husband had been working in Germany and had been subject to German social-security legislation in accordance with Ordinance no. 3 of the Council of Ministers of the European Communities (until 1 October 1972) and subsequently Ordinance 1408/71.
18. It found that, in these circumstances, the Social Insurance Bank had correctly concluded that the applicant was not insured under the General Old Age Pensions Act for the period her husband had worked in Germany.
19. However, as regards the question whether that situation was compatible with the principle of equality, in particular the prohibition on discrimination between men and women, the Appeals Tribunal noted that there was a provision in the royal decrees which rendered the insurance of married women under the Act dependent on their husbands being insured, whereas the decrees did not contain a comparable provision in respect of married men.
20. The Appeals Tribunal examined the applicant's situation in the light of Article 26 of the International Covenant on Civil and Political Rights (ICCPR). It referred to the case-law of the Central Appeals Tribunal according to which, from 23 December 1984, this provision was also directly applicable in the Netherlands legal order in the field of social security. The Appeals Tribunal found that this implied that rights could be derived directly from this provision in so far as an application, after 23 December 1984, of statutory rules created a difference in treatment between men and women without any objective and reasonable justification, and led to a more unfavourable result than would have existed had there not been such a difference. It considered that the applicant had found herself in that situation as she had been awarded an old-age pension on 1 March 1989 from which 38% was deducted on the basis of rules which made an unjustified distinction between married men and women.
21. The Appeals Tribunal noted that, from 1 April 1985 onwards, the principle of equal treatment between men and women had been incorporated in the General Old Age Pensions Act, and that this had resulted in the introduction of a system in which the entitlement to full benefits was made solely dependent on the question whether or not the person concerned had personally completed the qualifying years under the Act. It concluded, therefore, that married women, like the applicant, who had fully complied with the conditions for insurance under the Act, could not be regarded as having been uninsured during a certain period solely on grounds of marital status.
22. Consequently, the Appeals Tribunal quashed the decision of 14 February 1989, in so far as the applicant's pension was reduced by 38%, upheld the remainder of the decision and ruled that the applicant was entitled to a full pension under the Act. The Board of the Social Insurance Bank filed an appeal with the Central Appeals Tribunal.
23. In its judgment of 26 November 1993, following a hearing held on 15 October 1993, the Central Appeals Tribunal quashed the decision of 10 January 1990 and dismissed the applicant's appeal as ill-founded.
24. The Central Appeals Tribunal noted at the outset that it was not in dispute between the parties that the applicant did not belong to the group of persons as defined in Article 2 of Directive 79/7/EEC on the gradual implementation of the principle of equal treatment of men and women in the field of social security. It considered that view to be correct and, consequently, held that the question of the reduction in the applicant's pension could not be examined in the light of the prohibition on discrimination set out in Article 4 § 1 of this directive.
25. As regards the question whether the reduction in the applicant's pension was compatible with Article 26 of the ICCPR, the Central Appeals Tribunal considered that, from 23 December 1984 onwards, that provision could also be directly relied on in the field of social security. It also referred to the case-law according to which this implied that Contracting States to the ICCPR were obliged to ensure that their statutory rules were free of any form of discrimination prohibited by that provision. However, it said that a difference in treatment was not contrary to that provision where there were objective and reasonable grounds for the difference.
26. In the light of those considerations, the Central Appeals Tribunal held that Article 26 of the ICCPR could not deprive a national statutory rule of its effect, according to which the level of benefits under a statutory insurance scheme – like the General Old Age Pensions Act – was made dependent on the question of whether the periods of insurance had been completed. It held that this was no different where it could be established that the disqualification of certain periods of insurance before 23 December 1984 was based on a domestic rule which made a difference in treatment on the basis of sex, as that rule had been in operation during a period in which Article 26 of the ICCPR was not yet directly applicable and could not, therefore, deprive the domestic rule of its earlier effect.
27. The applicant's subsequent appeal on points of law to the Supreme Court (Hoge Raad) was dismissed on 29 May 1996. As to the applicant's argument that the Central Appeals Tribunal had failed to examine whether or not there was an objective and reasonable justification for the difference in treatment, the Supreme Court held that the Central Appeals Tribunal had correctly found that, as regards the periods in which the applicant had not been insured under the General Old Age Pensions Act, she could not rely on Article 26 of the ICCPR, as those periods predated the entry into force of that international instrument.
28. In so far as the applicant complained that the Central Appeals Tribunal had unjustly failed to deprive the discriminatory rule at issue of its effect on grounds of incompatibility with the prohibition on discrimination contained in Article 1 of the Constitution (Grondwet), the Supreme Court held that the periods during which the applicant had not been insured under the Act predated the entry into force of Article 1 of the Constitution.
29. In so far as the applicant relied on unwritten general principles of law (algemene rechtsbeginselen), in particular the principle of equality, the Supreme Court considered that, according to the explanatory memorandum (Nota van Toelichting) to the first royal decree on the extension and limitation of the group of insured persons of 20 December 1956, the exclusion was aimed at preventing an undesirable accumulation of benefits. According to the explanatory memorandum, the pension rights accrued by the man abroad were also considered to be intended to benefit his spouse.
30. The Supreme Court held that in view of the social attitudes prevailing at the relevant time, that is to say the periods during which the applicant had not been insured under the General Old Age Pensions Act, the government of the time could have taken the view that in practically all cases it was the man who was the “breadwinner” so that it could, accordingly, exclude married women and did not have to make a separate provision for cases where the woman was the “breadwinner”. The Supreme Court held, therefore, that there was an objective and reasonable justification for the difference in treatment on grounds of sex which the exclusion entailed.
31. The Supreme Court further rejected the applicant's argument based on the principle of equality contained in Article 4 § 1 of Directive 79/7/EEC on the gradual implementation of the principle of equal treatment of men and women in the field of social security, as the applicant fell outside the scope of Article 2 of the directive, which defined the group of persons to whom the directive applied.
32. The General Old Age Pensions Act establishes a general old-age pension scheme for persons who have attained the age of 65. Under this scheme, all persons between the ages of 15 and 65 who reside in the Netherlands are insured. Contributions to the scheme are paid by all persons who are gainfully employed in the Netherlands.
33. Entitlement to benefits under the General Old Age Pensions Act is not dependent on the level of contributions paid as, contrary to a social-security scheme based on employment (werknemersverzekering), it is a general social-security scheme (volksverzekering). The level of benefits is, however, linked to the period of insurance under the Act. Pursuant to section 13 (section 10 before 1 April 1985) of the Act, the pension entitlement is reduced by 2% for each year, between the ages of 15 and 65, that the person concerned was not insured under the Act on grounds of, inter alia, residence abroad. A person who has been insured under the Act for fifty years is entitled to a full pension.
34. On 19 December 1978 the Council of the European Communities issued Directive 79/7/EEC on the gradual implementation of the principle of equal treatment of men and women in the field of social security, allowing member States a period of six years until 23 December 1984 within which to make any amendments to legislation which might be necessary in order to bring it into conformity with the directive.
35. Until 1 April 1985 a married man was entitled to a pension under the General Old Age Pensions Act for a married couple equal to 100% of the minimum wage in force in the Netherlands. Unmarried persons of either sex were entitled to 70% of the minimum wage. A married woman had no entitlement in her own right. According to the royal decree on the extension and limitation of the group of insured persons, as amended on several occasions, a married woman residing in the Netherlands – whose husband was employed abroad and insured under the social-security system in the foreign country of employment – was not insured under the General Old Age Pensions Act.
36. On 1 April 1985 married women became entitled in their own right to a pension under the General Old Age Pensions Act. Each spouse became entitled to a pension equal to 50% of the minimum wage. The position for unmarried persons remained unchanged. As a result of this change, married women are no longer excluded from insurance under the Act for periods when their husbands were employed abroad, provided that they themselves have continuously resided in the Netherlands or have paid contributions on the basis of gainful employment in the Netherlands.
VIOLATED_ARTICLES: 14
P1
VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-104608
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: HOARE v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Sverre Erik Jebens;Vincent A. De Gaetano
TEXT: The applicant, Mr Iorworth Hoare, is a British national who was born in 1952 and lives in Newcastle upon Tyne. He is represented before the Court by Mr J. Atkins, a lawyer practising in Exeter.
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. In 1989, the applicant was convicted of attempted rape which had taken place on 22 February 1988. Given his history as a serial sexual offender, he was sentenced to life imprisonment. His seven-year tariff expired in March 1995 and he was released on life licence on 31 March 2005.
2. In 2004, while on day release from that sentence, the applicant purchased a ticket for the National Lottery. He won a sum in the region of GBP 7 million.
3. The news reached the victim of the 1988 rape, a Mrs A. She had been unable to sue the applicant for damages at the time of the offence because he was impecunious. She had, however, received a sum in the region of GBP 5,000 in compensation from the Criminal Injuries Compensation Board.
4. Upon hearing the news, Mrs A proceeded to seek damages against the applicant for trespass to the person.
5. On 22 December 2004, Mrs A issued her claim form seeking damages. The applicant sought legal advice from his solicitors and Counsel.
6. His barrister, a Queen’s Counsel, warned the applicant that there was a risk of his losing, as in any litigation. Given the well-established case-law on the matter, as explained by his legal representatives, however, the applicant felt that he could rely on the certainty of the law in this area to pursue his defence that Mrs A’s claim was time-barred.
7. Accordingly, on an unspecified date, the applicant rejected an offer made by Mrs A to settle the action for a sum in the region of GBP 25,000.
8. On 14 June 2005 Mrs A’s action was struck out by Master Eyre on the ground that it was time-barred pursuant to section 2 of the Limitation Act 1980 (“the 1980 Act”). The general rule, contained in section 2 of the 1980 Act, was that the period of limitation for an action in tort was six years from the date on which the cause of action accrued (see paragraph 38 below). In Mrs A’s case, the cause of action had arisen 16 years before the issue of the claim form and so was time-barred.
9. On an unspecified date, Mrs A was granted leave to appeal.
10. Before the High Court judge, the argument focused on the question whether Mrs A’s action was one to which section 2 or section 11 of the 1980 Act applied. Section 11 of the 1980 Act, upon which Mrs A sought to rely, covered actions for damages based on negligence, nuisance or breach of duty where the damages were in respect of personal injuries (see paragraph 39 below). The limitation period for such actions was three years, either from the date on which the cause of action accrued or the date of knowledge of the person injured, as defined in section 14 of the 1980 Act. In addition, section 33 of the 1980 Act gave the court a discretion to extend that three-year period when it appeared that it would be equitable to do so (see paragraph 40 below). It was the applicant’s case that section 2 applied and was a bar to Mrs A’s claim.
11. On 14 October 2005 Jack J sitting in the High Court dismissed Mrs A’s appeal. He concluded that, following the House of Lords decision in Stubbings v Webb [1993] AC 498, Mrs A’s claim was covered by section 2 of the 1980 Act rather than section 11.
12. In his judgment, Jack J recalled that the House of Lords in Stubbings had held that claims for injuries arising from complaints of deliberate assault or trespass to the person, such as Mrs A’s, were subject to the nonextendable six-year limitation period imposed by section 2. As regards the meaning of the words “breach of duty” contained in section 11, he noted that in his speech, Lord Griffiths had held that these words were not to be construed as including actions based on intentionally inflicted injuries, such as rape or indecent assault.
13. Jack J further rejected Mrs A’s contention that her right of access to court contained in Article 6 § 1 of the Convention had been breached. In particular, he relied on the Court’s judgment in Stubbings and Others v. the United Kingdom, 22 October 1996, Reports of Judgments and Decisions 1996IV, in which a majority had found no violation of Article 6 on the ground that the limitation period contained in section 2 of the 1980 Act, as interpreted by the House of Lords, constituted a proportionate restriction on the right of access to court.
14. Finally, Jack J referred to the comprehensive review of the law of limitation carried out by the Law Commission and laid before Parliament in July 2001: Limitation of Actions (Law Com No 270) (see paragraphs 52-53 below). He noted however that:
“20. The Law Commission’s Report has not yet been implemented. I have no information as to what the Government’s intentions may be. There is a hint in paragraph 54 of the European Court’s judgment in Stubbings that, if Member States - that is primarily their legislatures, do not act, the European Court would at a later date take a second look at the issue with possibly a different outcome. If that moment arrived for the European Court, a national court considering the issue would be in no different position. On this analysis the issue for me is whether that moment has arrived. I do not consider that the passage of four years since the Report is so long a period that what was within the ‘margin of appreciation’ has ceased to be so.”
15. Accordingly, Jack J ordered that Mrs A should pay the applicant’s costs in defending Mrs A’s appeal. Mrs A appealed.
16. In February 2006, the Court of Appeal heard Mrs A’s appeal together with two other appeals, namely H v Suffolk County Council and X and Y v Wandsworth Borough Council, which both concerned schoolboys who had been sexually abused by their teachers. The common feature of these appeals was that the claim in each case had been brought more than six years after the sexual abuse in question (or, in H and X and Y, after the schoolboys who had been abused had reached the age of 18).
17. In its judgment of 12 April 2006, the Court of Appeal dismissed all the appeals. The Court of Appeal began with a detailed review of the background to the 1980 Act; it examined both the respective decisions of the House of Lords and the Court in Stubbings as well as subsequent cases. As to the Law Commission’s report on the law of limitation of 2001, the Court of Appeal observed that:
“6. ...The remedy has now been in Parliament’s hands for nearly five years following a comprehensive law reform study conducted at considerable public expense. Although the Commission’s recommendations would not have affected cases in which the defendant already possessed an accrued limitation defence under existing legislation, justice would be far more simply achieved in claims like this in future if Parliament were to simplify the law along the lines the Commission recommended. In the meantime, the House of Lords itself may be able to remedy some of the very serious deficiencies and incoherencies in the law as it stands today in a way that we cannot.”
18. As to the argument that Stubbings v Webb had been wrongly decided by the House of Lords, the Court of Appeal held that it was bound by that decision of the House. The Court of Appeal noted however that both the cases decided since Stubbings v Webb and the detailed analysis of the Law Commission in its comprehensive 2001 report pointed to some very unsatisfactory features of the law as it applied to sexual abuse cases (at paragraphs 39-41 of the judgment).
19. The Court of Appeal further held, after a detailed examination of the relevant authorities, that because the six-year limitation period had expired before the Human Rights Act (“HRA”) came into force appellants could not rely on the provisions of that Act for assistance (at paragraphs 42-65 of the judgment).
20. As for the application of the law to Mrs A’s appeal, the Court of Appeal held, per Sir Anthony Clarke MR:
“118. If Parliament enacted the Law Commission’Stubbings v Webb to hold that the claim is statute barred, and for the reasons we have set out in paras 42 to 65 above the HRA cannot come to A’s assistance because the defendant possessed an accrued right to a limitation defence long before the HRA became law. For these reasons we must dismiss A’s appeal.”
21. In the event, the Court of Appeal ordered that Mrs A should pay the applicant’s costs of the appeal and that she be allowed to appeal to the House of Lords.
22. In the House of Lords, Mrs A’s appeal was joined with five other appeals which concerned the alleged sexual abuse of children/young persons by members of staff at schools which were managed by the local council. One of the appeals, Young v Catholic Care (Diocese of Leeds) and the Home Office, also involved allegations of sexual abuse by a member of staff in a detention centre operated by the Home Office. The appeals were heard on 1, 5, 6, and 7 November 2007.
23. The six conjoined appeals all raised the question whether claims for sexual assaults and abuse which took place many years before the commencement of proceedings were barred by the 1980 Act. The appeal in Young also raised an issue under section 14 of the 1980 Act which deals with the date of knowledge and what knowledge may or may not be attributed to a claimant.
24. In a unanimous judgment which was delivered on 30 January 2008, their Lordships concluded that section 11 of the 1980 Act, which traditionally applied to negligence and breach of duty actions, also applied to actions arising out of intentional torts where personal injuries were sustained. Accordingly, all the appeals were allowed.
25. Lord Hoffman, with whom all the other Law Lords agreed, gave the leading speech, explaining why the House should depart from its earlier case-law in Stubbings v Webb. After having given a detailed account of the history of the 1980 Act, he went on to note that, although Stubbings v Webb had not given rise to too much difficulty at first, the position had radically been changed with the House of Lords decision in Lister v Hesley Hall Ltd [2002] 1 AC 215. In that case, their Lordships had decided that sexual abuse was not necessarily outside the scope of an employment. After that, a considerable number of claims had been brought against the operators of schools, detention centres and the like for sexual abuse by employees. This, in the words of Lord Hoffman, “threw into relief the anomalies created by Stubbings”.
26. His Lordship referred in particular to the case of S v W (Child Abuse: Damages) [1995] 1 FLR 862, a pre-Lister case, in which the plaintiff had sued her father and mother for sexual abuse by the father. The action had been commenced nearly 10 years after the last act of abuse. As the cause of action against the father was intentional assault, the claim had been struck out. The cause of action against the mother was negligent failure to protect the plaintiff against the father. As this fell under section 11 of the 1980 Act and was subject to a discretionary extension under section 33, which had been granted by the judge and affirmed by the Court of Appeal, the action against the mother had been allowed to proceed. Lord Hoffman recorded the court’s finding, per Sir Ralph Gibson at p.867, that the result was “illogical and surprising” and deserving of the attention of the Law Commission.
27. Indeed, Lord Hoffman went on to note that:
“24. The matter was considered by the Law Commission as part of a comprehensive review of the law of limitation of actions which was presented to Parliament in 2001: Limitation of Actions (2001) (Law Com No 270). The effect of Stubbings was described as anomalous, with particular reference to S v W (Child Abuse: Damages) [1995] 1 FLR 862: see para 1.5 of the Report. The Commission recommended a uniform regime for personal injuries, whether the claim was made in negligence or trespass to the person: see the summary at para 1.14. There has not yet been any implementing legislation, possibly because the Commission’s recommendations were not confined to the Stubbings anomaly but proposed a completely new law of limitation of actions.”
28. Lord Hoffman concluded:
“25. Lord Reid’s observation [1972] AC 944, 966 that unsatisfactory decisions of the highest court can cause uncertainty because lower courts tend to distinguish them on inadequate grounds is also pertinent to the consequences of Stubbings. Claimants who have suffered sexual abuse but need to seek the discretion of the court under section 33 are driven to alleging that the abuse was the result of, or accompanied by, some other breach of duty which can be brought within the language of section 11. Thus, in addition to having to decide whether the claimant was sexually abused, the courts must decide whether this was the result of ‘systemic negligence’ on the part of the abuser’s employer or the negligence of some other person for whom the employer is responsible. In the appeals before the House, the appellants put forward at least four alternative theories of liability on which they wish to rely if the rule in Stubbings is upheld. These are, in increasing degree of artificiality (1) breach of a direct duty of care owed by the employer to the claimant; (2) breach of a duty of care by other employees; (3) breach of a duty of care by the abuser himself and (4) breach of a duty by the abuser to notify the employer of his own wrongful acts. In KR v Bryn Alyn Community (Holdings) Ltd [2003] QB 1441, para 100 Auld LJ said that the need to frame a claim in one or other of these ways when the real cause of complaint was sexual abuse for which the employer was vicariously liable was causing ‘arid and highly wasteful litigation turning on a distinction of no apparent principle or other merit.’ I therefore think that it would be right to depart from Stubbings and reaffirm the law laid down by the Court of Appeal in Letang v Cooper [1965] 1 QB 232.”
29. Lord Brown of Eaton-under-Heywood concurred. As regards the exercise of the court’s discretion under section 33 of the 1980 Act, he commented that, by no means everyone who brought a late claim for damages for sexual abuse, however genuine, could reasonably expect the court to exercise the section 33 discretion in his favour.
30. As regards Mrs A’s appeal, he stated:
“88. (...) It would not ordinarily be sensible to sue an indigent defendant. How then should the court approach the exercise of its section 33 discretion in a case like A where suddenly, after many years, the prospective defendant becomes rich. The House is not, of course, itself exercising this discretion. I would, however, suggest that it would be most unfortunate if people felt obliged (often at public expense) to bring proceedings for sexual abuse against indigent defendants simply with a view to their possible future enforcement. (Judgments, although interestbearing for only six years, are enforceable without limit of time.)”
31. The House of Lords judgment effectively meant in the applicant’s case that the section 11 limitation period of three years became applicable to the circumstances of his case with the possibility of an extension of that period at the discretion of the court under section 33 of the Limitation Act 1980. Indeed, their Lordships remitted the case to the High Court to consider whether it ought to exercise its discretion under section 33 of that Act. As for the question of costs, their Lordships ordered the parties to lodge written submissions on this issue within 14 days.
32. In a Judgment Order of 10 April 2008, the House of Lords awarded Mrs A her costs both before the House and the Court of Appeal, with the High Court costs to be determined by the judge hearing Mrs A’s application on section 33 of the Limitation Act 1980.
33. On 8 July 2008 Coulson J, sitting in the High Court, exercised his discretion in favour of Mrs A and allowed her to sue the applicant in damages.
34. Among the factors taken into account by the learned judge were the following: (i) the nature and seriousness of the underlying tortious wrong; (ii) the fact that one of the consequences of that wrong was the applicant’s impecuniosity (because he was unable to earn money by which he could otherwise have met a judgment for damages); (iii) the fact that, prior to his lottery win, the applicant was simply not worth pursuing in an action for damages – this being the principal reason for Mrs A’s delay; and (iv) the fact that Mrs A acted promptly following the defendant’s release from prison and his lottery win.
35. In response to the applicant’s argument that, if he exercised his discretion in favour of Mrs A in the present case, there would be a risk that parties in all aspects of civil litigation would seek to get round the applicable limitation periods by relying on the defendant’s impecuniosity, Coulson J added that:
“89. ...I consider this to be a wholly exceptional case. It will be very rare for a claimant to bring a claim against a defendant for a tortious wrong, in circumstances where that wrong was so serious that it caused the defendant to be sentenced to life imprisonment (thereby creating the impecuniosity which prevented the claimant from bringing proceedings against him in the first place) or brought with it in some other way a financial catastrophe for the defendant which meant that he would not be in a position to meet any judgment against him. It will be even rarer for such a defendant, years later, to buy a lottery ticket, which wins him £7million, or otherwise comes into an unexpected fortune, which makes him suddenly worth pursuing after all. Thus, even if it was appropriate to conclude that section 33 was only applicable in exceptional cases, I am in no doubt that this is indeed such a case.”
36. In the event, the applicant was ordered to pay the costs of all the proceedings before the lower courts in addition to the costs before the House of Lords and the Court of Appeal. In total, in addition to his own costs of GBP 239,583 the applicant was ordered to pay GBP 537,885.20 in legal costs and GBP 50,000 in compensation to Mrs A.
37. The background to the adoption of the Limitation Act 1980 is set out in detail in the Court’s judgment in Stubbings and Others v. the United Kingdom, 22 October 1996, §§ 28-37, Reports of Judgments and Decisions 1996IV.
38. Section 2 of the Limitation Act 1980 provides as follows:
“An action founded on tort shall not be brought after the expiration of six years from the date on which the cause of action accrued.”
39. Section 11 of the Limitation Act 1980 deals with special time limits for actions in respect of personal injuries and, in its relevant parts, reads as follows:
“11 (1) This section applies to any action for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under a statute or independently of any contract or any such provision) where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to the plaintiff or any other person. ...
(2) None of the time limits given in the preceding provisions of this Act shall apply to an action to which this section applies.
(3) An action to which this section applies shall not be brought after the expiration of the period applicable in accordance with subsection (4) or (5) below.
(4) Except where subsection (5) below applies, the period applicable is three years from—
(a) the date on which the cause of action accrued; or
(b) the date of knowledge (if later) of the person injured...
40. Section 33 of the Limitation Act 1980 further provides for discretionary exclusion of the time limit for actions in respect of personal injuries or death in the following terms:
“(1) If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which—
(a) the provisions of section 11 or 12 of this Act prejudice the plaintiff or any person whom he represents; and
(b) any decision of the court under this subsection would prejudice the defendant or any person whom he represents;
the court may direct that those provisions shall not apply to the action, or shall not apply to any specified cause of action to which the action relates.
(a) the length of, and the reasons for, the delay on the part of the plaintiff;
(b) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 11 or (as the case may be) by section 12;
(c) the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff’s cause of action against the defendant;
(d) the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action;
(e)the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages;
(f) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.
(4) In a case where the person injured died when, because of section 11, he could no longer maintain an action and recover damages in respect of the injury, the court shall have regard in particular to the length of, and the reasons for, the delay on the part of the deceased.
(5) In a case under subsection (4) above, or any other case where the time limit, or one of the time limits, depends on the date of knowledge of a person other than the plaintiff, subsection (3) above shall have effect with appropriate modifications, and shall have effect in particular as if references to the plaintiff included references to any person whose date of knowledge is or was relevant in determining a time limit.
(6) A direction by the court disapplying the provisions of section 12(1) shall operate to disapply the provisions to the same effect in section 1(1) of the Fatal Accidents Act 1976...”
41. In its report, Limitation of Actions (2001) (Law Com No 270), the Law Commission carried out a comprehensive review of the law of limitation. As regards sexual abuse cases, the Commission identified the following problems:
“1.5 Traditionally, the limitation period has started from the date the cause of action accrued, whether or not the claimant knows of the potential claim. This caused injustice where the injury suffered by the claimant did not become apparent for several years. Provision has been made for such cases of latent damage in actions for personal injuries, under the Consumer Protection Act 1987 and in some other cases. However, the provision for latent damage does not extend to most causes of action. Outside the areas of personal injuries and consumer protection, the limitation period will only run from the date the claimant knows the relevant facts if the claim is brought in negligence. Even where the claim is for personal injuries, provision for latent damage does not extend to deliberately caused injuries. Here the limitation period remains six years, running from the date of accrual of the cause of action. This has led to the anomalous result that a claimant who has been sexually abused by her father may have longer to bring a claim for damages against her mother for negligently failing to prevent the abuse than to bring a claim against her father for actually committing the abuse.
1.6 It is necessary to balance the interests of the claimant (who wishes to have as long as possible to bring a claim) and the defendant (who must be protected from stale claims) in setting a limitation period. It will never be possible to achieve complete fairness between the parties (indeed the imposition of any limitation period could be regarded as doing ‘rough justice’ to the claimant). However the balance struck under the present law does not give sufficient recognition to the interests of the claimant...”
42. The Law Commission thus recommended the following:
“1.14 The core regime will be modified in its application to claims in respect of personal injuries. The court should have a discretion to disapply the primary limitation period, and no long-stop limitation period will apply...
All personal injury claims will be subject to this regime, whether the claim concerned is made in negligence or trespass to the person (including claims in respect of personal injury).”
43. In the Practice Statement (Judicial Precedent) 1966 1 W.L.R. 1234, Lord Gardiner L.C. declared:
“Their Lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases. It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules.
Their Lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose, therefore, to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so.
In this connection they will bear in mind the danger of disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into and also the especial need for certainty as to the criminal law.
This announcement is not intended to affect the use of precedent elsewhere than in this House.”
44. The relevant rules on costs read as follows:
“ (1) The court has discretion as to –
(a) whether costs are payable by one party to another;
(b) the amount of those costs; and
(c) when they are to be paid.
(2) If the court decides to make an order about costs –
(a) the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party; but
(b) the court may make a different order.
(...)
(4) In deciding what order (if any) to make about costs, the court must have regard to all the circumstances, including –
(a) the conduct of all the parties;
(b) whether a party has succeeded on part of his case, even if he has not been wholly successful; and
(c) any payment into court or admissible offer to settle made by a party which is drawn to the court’s attention, and which is not an offer to which costs consequences under Part 36 apply.
(5) The conduct of the parties includes –
(a) conduct before, as well as during, the proceedings and in particular the extent to which the parties followed the Practice Direction (Pre-Action Conduct) or any relevant pre-action protocol;
(b) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;
(c) the manner in which a party has pursued or defended his case or a particular allegation or issue; and
(d) whether a claimant who has succeeded in his claim, in whole or in part, exaggerated his claim.
(6) The orders which the court may make under this rule include an order that a party must pay –
(a) a proportion of another party’s costs;
(b) a stated amount in respect of another party’s costs;
(c) costs from or until a certain date only;
(d) costs incurred before proceedings have begun;
(e) costs relating to particular steps taken in the proceedings;
(f) costs relating only to a distinct part of the proceedings; and
(g) interest on costs from or until a certain date, including a date before judgment.”


ITEMID: 001-5357
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: ANKARCRONA v. SWEDEN
IMPORTANCE: 1
CONCLUSION: Inadmissible
JUDGES: Gaukur Jörundsson;Wilhelmina Thomassen
TEXT: The applicant is a Swedish national, born in 1949 and living in Upplands Väsby. He is represented before the Court by Mr Jan Södergren, a lawyer practising in Stockholm.
A.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant is the sole shareholder of a Swedish limited liability company, Skyddsvakt Hubert Ankarcrona AB. The company is licensed to trade in certain specified military equipment. By Government decision of 30 November 1995, the company was granted a licence, valid until 30 November 2000, to trade in, inter alia, salvage vehicles and amphibious crafts.
It appears that the company bought some military equipment, including armoured vehicles, in the United Kingdom which were not covered by the above licence. Subsequently, after that purchase, the company requested that the licence be extended to cover, inter alia, armoured vehicles.
On 26 June 1996 the company's request for an extended licence was rejected by the National Inspectorate of Strategic Products (Inspektionen för strategiska produkter; hereinafter “the Inspectorate”). The Inspectorate stated that licences are given on a very restrictive basis and that it did not find any reason to extend the company's existing licence. On 27 November 1996 the Inspectorate rejected, with the same reasons, a renewed application from the company. No appeal lay against the Inspectorate's decisions.
B. Relevant domestic law
Chapter 2, Section 20, sub-section 1 of the Instrument of Government (regerings-formen) provides that restrictions may be introduced in the right to trade or practise a profession only in order to protect significant public interests and never solely in order to further the financial interests of particular persons or firms.
The 1992 Military Equipment Act (lagen om krigsmateriel; hereinafter “1992 Act”) regulates activities which involve, inter alia, the manufacture, supply and export of military equipment. Thus, the Act covers weapons, ammunition and other equipment designed for military use, which constitute military equipment according to regulations issued by the Government. Such regulations are found in an annex to the 1992 Military Equipment Ordinance (förordningen om krigsmateriel).
According to the 1992 Act, there is a general prohibition against the manufacture, supply and export of military equipment (Sections 3–6). A special permit or licence is required if an exception to the general rule is to be made. Prior to 1996, the Government decided, directly, in all matters concerning, inter alia, the supply of military equipment. Matters of routine character were determined by the responsible minister. As from 1 January 1996, the Inspectorate is the Swedish authority that examines applications for permits under the 1992 Act. However, in cases where the Inspectorate deems a matter under the 1992 Act to be of principle significance or otherwise of special importance, the matter shall be referred to the Government for consideration (Section 1a).
Permits under the 1992 Act to manufacture, supply and export military equipment may be granted only if supported by security or defence policy reasons and provided that such permits are not in conflict with Swedish foreign policy (Section 1). In the travaux préparatoires to the Act (cf. Government Bill 1991/92 No. 174), directives were given on how to apply this rule. The Government's earlier decisions in similar matters would serve as guidance in the examination of other, future cases and thus be taken into account by the Inspectorate in its application of the Act. According to the principles thus emanating from the Government's earlier practice, a permit should be granted only if this was necessary for a supply of military equipment and the need for know-how in this area. A further requirement was that the granting of a permit must not be contrary to Swedish foreign policy goals and to the principles on which that policy is based.
A permit granted under the 1992 Act may, as a main rule, be cancelled at any point in time if the permit holder has disregarded a regulation contained in the Act, or a regulation, requirement or provision issued under the Act or if there are other special reasons for such a cancellation (Section 16).
An appeal against a decision by the Inspectorate to cancel a permit in accordance with Section 16 of the 1992 Act or to determine a fee under its Section 22 may be brought before the administrative courts. An appeal may not be lodged against any other decision by the Inspectorate under the Act (Section 23a).
If the Inspectorate has referred a matter to the Government for consideration in accordance with Section 1a of the 1992 Act, an application for judicial review may be lodged with the Supreme Administrative Court (Regeringsrätten) in accordance with the 1988 Act on Judicial Review of Certain Administrative Decisions (lagen om rättsprövning av vissa förvaltningsbeslut). This is, however, only the case if the Government have decided to cancel a permit to manufacture or to supply military equipment in accordance with Section 3 or 4 of the 1992 Act.
The issue of appeal was discussed in connection with the establishment of the Inspectorate (cf. Government Bill 1995/96 No. 31). Considerations pertaining to national defence, security and foreign policy were the only considerations that were deemed relevant and which were to be decisive for the outcome of a permit matter under the 1992 Act. Private interests, such as an applicant company's interest in disposing of its products on the military equipment market, were to be afforded no relevance. The fact that the authority determining a permit matter should not include such interests in its assessment also motivated that it should not be possible to pursue such interests on appeal or in an application for judicial review. The situation was, however, deemed to be different when the cancellation of a permit was at stake. The starting-point here was that the permit holder was entitled to keep the permit. Considerations pertaining to the legal rights of the individual or the individual company in question were deemed to be of more relevance in this context. It was, however, also stressed that the courts could not be expected to make assessments that were of a pronounced political nature (ibid., pp. 34–35).