ITEMID: 001-61127
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF CUMPANA AND MAZARE v. ROMANIA
IMPORTANCE: 3
CONCLUSION: No violation of Art. 10
TEXT: 9. The applicants, Constantin Cumpănă and Radu Mazăre, were born in 1951 and 1968 respectively and live in Constanţa.
10. On 12 April 1994 the applicants published an article in the Telegraf (“T.”) newspaper, of which the second applicant was the editor, with the headline “Former Deputy Mayor Dan Miron [D.M.] and serving judge Revi Moga [R.M.] responsible for series of offences in Vinalex scam”. The article questioned the legality of a contract which Constanţa City Council had awarded a company, Vinalex, to perform the service of towing away illegally parked vehicles, and expressed the following opinions:
“In a decision (no. 33) of 30 June 1992 Constanţa City Council awarded a commercial company, S.C. C.B.N. SRL, a contract for impounding illegally parked vehicles or trailers... It was the task of the city council’s specialist departments to lay down the practical arrangements for implementing the decision. That did not happen. Six months after adopting decision no. 33, the city council, knowingly breaching Law no. 69/1991, illegally concluded a partnership contract ... with S.C. Vinalex SRL, a completely different company from the one initially given the contract. It is worth noting, however, that the relevant contract was signed by the deputy mayor, D.M., on behalf of the mayor, ..., and by a certain Moga on behalf of the legal expert M.T.
By what miracle did S.C. Vinalex enter into a partnership with the city council when, in decision no. 33 of 30 June 1992, the council had awarded C.B.N. SRL a straightforward contract to provide services? Significantly, there is no evidence that C.B.N. agreed to abandon the task of towing away illegally parked vehicles! ... The crook D.M. (the former deputy mayor, now a lawyer) authorised Vinalex’s irresponsible employees to record any parking offences – in other words, to ridicule citizens and their property. What form did the fraud take? Sections 89 and 29 of Law no. 69/91 provide that no partnership contract with a commercial company may be signed without a prior decision by the local council, adopted by a two-thirds majority of the total number of councillors. Before a contract is signed, it must be referred to all the local council’s specialist departments for their opinion. ... The contract with Vinalex was negotiated and signed illegally, as the signatories based it on the decision [of 30 June 1992], which, as has already been shown, referred to a different company without envisaging any other partnership.
Given that the city council had already signed four other contracts before that one, the signatories cannot claim ignorance of the law, but only an intentional breach of it! And because any intentional breach of the law pursues an end in itself – generally that of securing material advantages – it is clear that in this case the former deputy mayor, a lawyer by profession, received backhanders from the partner company and either bribed his subordinates, including R.M., or forced them to break the law.
The Constanţa Audit Court has detected this blatant fraud, which generated huge profits for the briber (S.C. Vinalex)... The offending company [S.C. Vinalex] has never shown that it has adequate facilities for impounding illegally parked vehicles. This has caused large numbers of privately owned vehicles to be damaged and has implicitly given rise to thousands of complaints to that effect.
Furthermore, the alleged partnership contract was valid for one year, until 16 December 1993. From that date [S.C. Vinalex] has no longer had any right to interfere with citizens’ private property! It has nevertheless carried on towing vehicles away and illegally collecting money... It is incomprehensible how the police could have provided it with assistance for the past four months.
Let us briefly consider the conduct of the council’s former legal expert, R.M., who is now a judge. Either she was ignorant of our country’s legislation when she signed the partnership contract, in which case it is hard to understand how she can subsequently have been appointed as a judge (administering justice on the basis of laws she does not know), or she accepted bribes and may continue to do so in future! It is not surprising that the same judge should be under investigation by the Audit Court for a further unlawful act, again committed while she was at the city council (as we reported at the relevant time). It seems laughable that the court’s president did not take any action against her on the ground that the sum involved was not ... high enough.
Apparently becoming aware of the danger that the matter might be uncovered, the city council’s coordination department ... notified S.C. Vinalex in writing of the possibility of the contract being terminated for the following reason: ... ‘You have not supplied any documents showing that you have purchased the platform-type equipment necessary for carrying out the activity properly’ (as stipulated in clause 3 of the contract). ... In the same letter the city council informed S.C. Vinalex: ‘As you have not proved that you have the appropriate equipment, we would assess your contribution to the partnership at up to the sum of your company’s capital, that is 110,000 lei. Your share in the partnership’s net income will have to be recalculated in relation to the parties’ contributions.’ Facts are facts, and the documents in our possession ‘speak’ for themselves of the illegal Vinalex scam.”
11. The article was accompanied by a photograph of a police car on the scene as an illegally parked vehicle was being towed away, photocopies of extracts from the partnership contract and from Constanţa City Council’s decision of 30 June 1992, and certain provisions of Law no. 69/91, concerning the responsibilities and powers of mayors, prefects and city and county councils.
12. The article was also accompanied by a cartoon showing a man and a woman arm in arm, carrying a bag marked “Vinalex” which was full of banknotes. The two characters were depicted as saying to each other:
“Hey, Revi [R.M.], you’ve done a good job there! When I was deputy mayor we made quite a bit, enough to go to America...”
“Dănuţule [D.M.], if you become a lawyer, I’ll become a judge and we’ll have enough to travel round the world...”
13. On an unspecified date after the article had been published, R.M. instituted proceedings against the applicants in the Constanţa Court of First Instance for insult and defamation, offences under Articles 205 and 206 of the Criminal Code respectively. She complained, in particular, about the cartoon accompanying the article, arguing that it had led readers to believe that she had had intimate relations with D.M. She pointed out that both she and the former deputy mayor were married to other people.
14. At a hearing on 13 May 1994 the court adjourned the case as the applicants were not present and, scheduling a further hearing for 27 May 1994, directed that that they should be brought before the court on that date.
15. On 27 May 1994 the second applicant stated at the public hearing that, as editor, he assumed full responsibility for what had been published in the newspaper. He submitted that cartoons were frequently used in the press as a medium for criticism and that he had not intended to damage the complainant’s reputation. In reply to a question from the court he admitted having learned that, by order of the mayor of Constanţa, Vinalex had been authorised to tow away illegally parked cars. He stated, however, that he had not thought it necessary to publish that information. Lastly, he stressed that he did not intend to reach a settlement with the injured party and that he was prepared to publish an article on her behalf if she could prove that what he had published was untrue.
16. On 10 June 1994 the applicants applied to have the case transferred to a court in another county. They also requested an adjournment of the proceedings, arguing that because the complainant was a judge it was impossible for them to find a member of the Constanţa Bar who would agree to represent them.
17. On an unspecified date the Constanţa Bar, in reply to a question from the court, attested that the applicants had not met with a refusal on the part of each of its members and that, in any event, the matter had not been referred to its executive.
18. On 15 June and 1 July 1994 the court adjourned the case as the applicants were not present.
19. In an interlocutory decision of 21 July 1994 the Supreme Court of Justice ordered the referral of the case to the Lehliu-Gară Court of First Instance.
20. On 15 November 1994 the case was entered on that court’s list of cases for hearing. Public hearings were held on 21 December 1994 and on 25 January, 27 February, 20 March, 17 April and 17 May 1995.
21. On 21 December 1994 and 25 January 1995 the applicants did not attend the hearings, although they had been duly summoned. The court summoned them to appear at the hearings of 25 January and 27 February 1995. The applicants did not comply with the summonses.
22. At the hearings on 27 February and 20 March 1995, representatives of the T. newspaper applied on behalf of the applicants, who were not present, to have the proceedings adjourned. The court allowed the application.
23. On 20 March 1995 a member of the Bucharest Bar, N.V., agreed to represent the applicants.
24. At the hearing on 17 April 1995 in the morning N.V. asked the court to consider the case after 11.30 a.m. The court granted his request. However, when it sat to examine the case at 12 noon and, subsequently, at 2.30 p.m. it noted that neither the applicants nor their counsel were present in the courtroom. It accordingly adjourned the case until 17 May 1995.
25. At the hearing on 17 May 1995 the court reserved judgment, after noting that neither the applicants – despite their having been duly summoned – nor their counsel had appeared. In a judgment delivered that day the court found the applicants guilty of insult and defamation, offences under Articles 205 and 206 respectively of the Criminal Code. It sentenced them to seven months’ imprisonment and prohibited them from working as journalists for one year after completing their sentences, a security measure provided for in Article 115 § 1 of the Criminal Code. It also ordered them to pay R.M. an award of 25,000,000 lei for non-pecuniary damage.
26. Attaching decisive weight to R.M.’s position as a member of the judiciary, the court considered that the acts of which the applicants were accused posed a danger to society, not because of their practical consequence – distortion of the truth – but because of their psycho-social effects, namely misinformation of the public, creation of a false scale of values and the psychological trauma suffered by the injured party. The court considered that in publishing the article in issue, the applicants had not pursued a legitimate aim and had acted in bad faith, since the facts they had reported did not correspond to the truth.
27. On an unspecified date the applicants appealed against that judgment, without stating any grounds for their appeal.
28. At a hearing on 2 November 1995 the Călăraşi County Court reserved judgment, having noted that the case was ready for decision and that the applicants, who had been duly summoned, had not appeared in court or given any grounds for their appeal.
29. The applicants state that for reasons beyond their control they arrived late on 2 November 1995, by which time the hearing had already ended. They submit that on the morning of the hearing the level of the Danube had fallen and that the ferry, the only means of travelling to the town where the court was sitting, had been delayed.
30. In a decision of 2 November 1995 the court, after examining all the aspects of the criminal case against the applicants, as required by Article 3856 of the Code of Criminal Procedure (CCP), upheld the first-instance judgment, finding it to have been correct. That decision, sent to the archives on 23 November 1995, was final and binding and no ordinary appeal lay against it.
31. The applicants did not serve their custodial sentence, since immediately after the decision had been delivered, the Procurator-General suspended its execution for eleven months, on the basis of Article 412 of the CCP, by which he was empowered to order a stay of execution before applying to have a decision quashed.
32. On 10 April 1996 the Procurator-General applied to the Supreme Court of Justice to have the decisions of 17 May 1995 and 2 November 1995 quashed. He submitted the following arguments.
(a) The courts’ legal classification of the facts had been incorrect. He pointed out in that connection that in the cartoon the applicants had simply highlighted their allegations of corruption on the part of the city council officials. He accordingly submitted that the facts in issue did not constitute the actus reus of insult as defined in Article 205 of the Criminal Code.
(b) The amount which the applicants had been ordered to pay in damages had been extremely high and had not been objectively justified.
(c) The requirements of Article 115 § 1 of the Criminal Code, by which the courts could prohibit persons who had committed an offence from practising a particular profession on account of incompetence, lack of training or any other ground making them unfit to practise the profession, were not satisfied in the applicants’ case. He pointed out in that connection that there was no unequivocal proof that the applicants were incompetent or would pose a potential danger by continuing to work as journalists.
33. In a final judgment of 9 July 1996 the Supreme Court of Justice dismissed the Procurator-General’s application as being manifestly ill-founded. After examining the evidence before it, the Supreme Court
(a) considered that in publishing the impugned article in T., the applicants had made an allegation about the injured party which, if true, would have rendered her criminally liable, and that the offence of defamation as defined in Article 206 of the Criminal Code had therefore been made out;
(b) held that the cartoon accompanying the article, in which the injured party was depicted in the company of a man carrying a bag of money, had been such as to disparage the complainant’s honour and reputation and had therefore constituted the actus reus of insult as defined in Article 205 of the Criminal Code, and accordingly concluded that the lower courts had been correct in their classification of the acts carried out by the applicants;
(c) considered that the high amount which the applicants had been ordered to pay in damages had been justified by the fact that their article had been published in a mass-circulation newspaper, thereby seriously offending the honour and dignity of the injured party; and
(d) held, lastly, that it was not possible to review the alleged unlawfulness of the temporary prohibition on practising the profession of journalist in the context of an application to have a decision quashed.
34. In a letter of 30 September 1996 the Procurator-General at the Supreme Court of Justice informed the applicants that he had extended the stay of execution of their sentence until 27 November 1996.
35. On 22 November 1996 the President of Romania granted the applicants a pardon in respect of their custodial sentence.
36. In a letter received by the Court on 19 January 2000 the second applicant informed the Court that he was still working as editor of T., the position he had occupied when lodging his application.
It appears from the copy submitted to the Court of the first applicant’s employment record (cartea de muncă) that, following the Călăraşi County Court’s decision of 2 November 1995:
(a) he continued to work for T. as editor of the “Events” section until 1 February 1996, when he was transferred for administrative reasons to the C. company, occupying the same position and receiving the same salary as before;
(b) he left that post on 14 April 1997 on account of staff cutbacks by his employer, a ground for dismissal provided for in Article 130 (a) of the Labour Code as in force at the material time; and
(c) he was not gainfully employed until 7 February 2000, when he was recruited on a permanent contract by the A. company as deputy editor.
37. The relevant provisions are worded as follows:
“Anyone who disparages the reputation or honour of another through words, gestures or any other means ... shall be liable to imprisonment for between one month and two years or to a fine.”
“Anyone who makes any statement or allegation in public concerning a particular person which, if true, would render that person liable to a criminal, administrative or disciplinary penalty or expose them to public opprobrium, shall be liable to imprisonment for between three months and three years or to a fine.”
38. The Government state, as a matter of legislative policy, that the Romanian parliament is currently studying recent proposals for legislative reform aimed at abolishing imprisonment for the offences of insult and defamation as defined in Article 205 and 206 of the Criminal Code.
“Anyone who has committed an [unlawful] act through incompetence, lack of training or for any other reasons rendering him or her unfit to perform certain duties or to practise a certain profession or occupation may be prohibited from performing those duties or practising that profession or occupation. Such a measure may be revoked on request after one year if the grounds on which it was imposed are no longer valid.”
“A pardon shall have no effect on security measures and educational measures.”
“The Procurator-General may, of his own motion or on an application by the Minister of Justice, apply to the Supreme Court of Justice for any final decision to be quashed.”
“An application to have a final conviction ... quashed may be made in the following cases:
I. ...
4. where the penalties imposed did not fall within the limits prescribed by law; ...
7. where the offence was incorrectly classified in law...”
“Before applying to have a decision quashed, the Procurator-General may order a stay of its execution.”
NON_VIOLATED_ARTICLES: 10


ITEMID: 001-81723
LANGUAGEISOCODE: ENG
RESPONDENT: NOR
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: THIERMANN AND OTHERS v. NORWAY
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The application was introduced on 10 June 2003 by three groups of applicants.
The first group included seven applicants who were parties to the first set of proceedings instituted before the domestic courts: (1) Mr Werner Hermann Thiermann (Farstad, Norway), (2) Mrs Harriet von Nickel (Al Made, Portugal), (3) Mrs Anne-Marie Grübe (Sarpsborg, Norway), (4) Mrs Gerd Synnøve Andersen (Sarpsborg); (5) Mr Karl Otto Zinken (Ski, Norway); (6) Mrs Tove Laila Strand (Oslo, Norway); (7) Mr Paul Hansen (Oslo). They are all Norwegian nationals.
The second group consisted of 48 persons whose names are listed in the Appendix hereto and in respect of whom a second summons was issued before the national courts (this summons had concerned altogether 50 litigants). They are all Norwegian nationals.
The third group comprises 60 persons whose names are listed in the Appendix and in respect of whom a third such summons was issued (this summons had concerned altogether 64 litigants). Two of these persons are citizens of Sweden, the remainder are Norwegian nationals.
As the parties of both the second and third group were not allowed to join the case of the first group, they filed a separate action, which was stayed pending the outcome of that brought by the first group. In the light of the result they considered it futile to pursue their action.
On 12 December 2003 a fourth group of 44 persons, whose names are listed in the Appendix (two of whom are citizens of Sweden, one of Germany and the remaining are Norwegian nationals), joined the above-mentioned application introduced on 10 June 2003. Because of the outcome in the case pursued by the first seven applicants, they considered bringing any proceedings themselves before the national courts to be devoid of any purpose.
The applicants are represented before the Court by Mrs R.H. Spydevold, a lawyer practising in Oslo. The Government are represented by their Agent, Mr Thomas G. Naalsund, Attorney General's Office (Civil Affairs).
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicants have in common that they have a Norwegian mother and a German father and were born during the Second World War. A number of them were registered as children of “Lebensborn” (which means “spring of life”).
The “Lebensborn” was a Nazi project created by Heinrich Himmler in 1935, with the aim of taking care of mothers and children who were deemed valuable from “a racial and genetic” point of view. Young girls considered "racially pure" were to be offered the possibility to give birth to a child in secret. The child was then to be given to the SS organisation which was to look after his or her education and adoption. A Norwegian centre was established in 1941. During the period between late 1940 and 8 May 1945, between 10,000 and 12,000 children were born in Norway from a Norwegian mother and a German father. They were referred to as “war children” (krigsbarn).
A large number of mothers to war children were marginalised, had great difficulties in obtaining gainful employment and were incapable of providing for the upbringing of their offspring. In many instances their children were placed for adoption, in foster homes or in institutions.
Towards the end of the War and thereafter, various public officials, notably clergymen and medical doctors, expressed publicly negative opinions about the war children. This included allegations to the effect that the latter were defective individuals and potential fifth colonists.
On 9 July 1945 the Ministry of Social Affairs appointed a War Children Committee (krigsbarnutvlaget) to review whether it was desirable to deport the war children and their mothers to Germany and, in any event, what special measures could be taken to integrate the children as ordinary citizens in Norway.
The Commission's report, which was completed in the autumn of 1945, advised against deportation and recommended the launching of an extensive and carefully prepared information campaign in order to influence public opinion to become favourable towards the war children and to extend that concept to cover not only those children whose fathers were German but also those whose fathers were of other foreign nationalities.
According to information supplied by the Government, the authorities concluded that in the circumstances at the time such a campaign was neither necessary nor desirable. In this connection the Government referred to the minutes of the Sixth Nordic Child Protection Congress in 1948, according to which the Norwegian representative, and secretary-general of the Norwegian Child Protection Council, Mr Oscar Lyngstad, stated:
“The authorities have accepted the consequences of the fact that under Norwegian law the children are Norwegian citizens with the same legal position as other children. It is now generally recognised that the war children should fit into society among other children without attention being specially drawn to them.”
The Government further referred to a Bill to Parliament (Odelstingsproposisjon No. 37 (1949), page 2, which stated:
“The War Children Committee made its report in November 1945 and here proposed a number of measures with a view to solving the different problems that were expected to arise. The Commission also proposed a special War Children Act. None of these measures were implemented, as it was found that the children were quite quickly absorbed by society. Most were taken in by relatives or put up for adoption. It has not been necessary in the interests of either the children or their mothers to take special protective measures.”
According to the applicants, the authorities were responsible for having actively and passively contributed to war children having been treated as “free for all”. This failure had occurred despite the authorities' having been aware, as it emerged from the War Children Committee's report, of widespread public opinion that the war children were potential fifth colonists, mentally retarded and carriers of poor genes. As a result, a number of war children had been placed in psychiatric institutions without adequate prior expert assessment. Many had been subjected to discrimination, harassment and ill-treatment in children's homes, educational establishments, adoptive homes and foster homes and to derogatory treatment in their close social environment.
In his New Year speech to the Norwegian people on 1 January 2000 the Prime Minister, Kjell Magne Bondevik stated:
“... [W]e cannot let the turn of the century pass without taking in the injustice suffered by many war children in the Post War area. On behalf of the State of Norway I should like to apologise for the discrimination and injustice to which they had been subjected.”
The first, second and third groups of applicants, but not the fourth group, submitted briefs about their individual story with their initial application. In connection with the Court's oral hearing on 8 March 2007 most of the applicants in the fourth group submitted such information. On that occasion the applicants in the first group submitted various medical statements and other documents regarding their personal health that were submitted in the domestic proceedings, notably before the High Court. Also a number of the applicants in the second group and a few of the applicants in the third and fourth groups submitted such statements, mostly of more recent dates. The documents provided information on their health status and variously also on the applicant's accounts about their past as war children. For the purposes of the present decision, the Court considers it sufficient to reiterate the accounts of the first seven applicants.
The first seven applicants are members of the Krigsbarnforbundet Lebensborn (Association of War Children of Lebensborn), which was created in 1999 and has approximately 80 members. There is also Norges Krigsbarnforbund (the Norwegian War Children Association), set up in 1986 and comprising around 700 members.
The first applicant, Mr Werner Hermann Thiermann, was born in 1941. During the War he lived in a children's home established by the Germans. Thereafter he was placed successively in about 20 different homes. For a few years he lived with his grandmother, before being placed with foster parents.
The first applicant submits that while he was living in one of the children's homes, he and a little girl were locked up in a pig house for a whole day because, so they were told, they stank. It was scorching hot and when they were released at night they were almost unconscious. They were scrubbed with a piassava brush, water and ammoniac. During this treatment they were made to understand that it was due to the fact that they were war children.
Because he was a war child, the first applicant was harassed at school and in his close environment, without anybody trying to stop it. As a nine-year old he was, with his teacher's blessing, raped by some older boys at school.
After having finished school at the age of 17 he went off shore. He spent a few years in Germany and then returned to Norway in order to serve his military service. He wished to pursue further education within the Army, but was dissuaded from doing so because of his background.
When he was 16 or 17 years old he took for the first time formal steps to look into his background, with the assistance of the Red Cross.
During most of his professional life, the first applicant had worked as a driver. From 1981 to 1985 he ran his own business as a lorry driver. In 1986 he went bankrupt and in 1987 he was granted a disability pension on account of psychological problems and back pain. In 1999 he resumed working as a driver, part time.
Born in March 1942, the second applicant, Mrs Harriet von Nickel, lived during her first 17 months with her grandmother, until she was placed with foster parents who had initially asked for a boy. Love and care were totally lacking in the foster home, where she was told that she was ugly, bad, stupid and had heinous genes. She was regularly locked up in a utility room near the hall to wait for her foster father to come home and hit her. On some occasions, in order to prevent her from escaping, she was attached by a dog chain. She was spanked extensively both at home and at school. Once during a geography lesson she was asked to stand up so that the whole class could see what a “German kid” (tyskerunge) looked like. When she was seven or eight years old a dentist purposely drilled her gum. At the age of nine or ten some alcoholics in her neighbourhood marked a swastika with a nail on her forehead and verbally abused her. She fled from her foster parents and went to Germany to see her father, but there she was arrested as an illegal immigrant and was returned to Norway. For a short period she went to secondary modern school, but had to leave. In 1989 she applied for a disability pension, which she was granted with effect from 1 June 1988. In 1990 she published a book about her background.
The third applicant, Mrs Anne-Marie Grübe, was born in April 1944. After the war her mother worked and left her at home all day unattended, until she was moved to her grandmother's home in Moss. There she was beaten a lot by her grandmother and her aunts. One of her aunts told her that if her mother had stayed away from the Germans her grandmother would not have had to take care of her. It did happen that she was given presents, but she experienced that these could be taken away from her after a few days. Frequently house arrest was imposed upon her. Love and care were missing in her home.
She started at ordinary school but was moved to a class for children needing special attention. She was harassed at school. In her local environment people shouted words like “German kid” or “løsunge”. Over the years she has had great psychological and physical problems. She started to receive a disability pension in 1974. The medical certificate supporting her pension application referred to her traumatic childhood.
The fourth applicant, Mrs Gerd Synnøve Andersen, was born in August 1944 in Sarpsborg. She believes that for the first two years of her life she was placed in a barracks. Thereafter she was placed in a children's home. She was washed with scalding hot water, being told by the headmistress that this was the best and only way of cleaning “German children” with greasy hair. The children's home deprived her of her liberty and prevented her from having normal social contacts as she was never allowed to receive visits from friends.
Throughout primary school she was placed in a class for children needing special attention. Due to lack of knowledge, she did not manage to complete secondary modern school. She was regularly exposed to violence. During her sixth school year a teacher sexually abused her. This was witnessed by the whole class and led to the teacher's dismissal. When she married at 18 years old the priest stated that he thought she should be sterilised. In 1995 she started to receive a disability pension.
The fifth applicant, Mr Karl Otto Zinken, was born in August 1941. He stayed in a children's home in 1945. As a six year old he was returned to his mother. He went to ordinary primary school before he was placed in a special school for retarded persons, which he completed. It is clear that he should never have been sent to such a school and that the reason for sending him there was his status as a war child. In connection with a medical examination he was subjected to brain-washing by a psychiatrist together with other men who surrounded him in a circle. They told him what a scum of the earth he was and that he should not seek to multiply; otherwise he would go to hell. He should never assert himself, or else he would be killed. He was raped by two of the men.
The fifth applicant was rejected by his stepfather's family and was harassed by the latter's children. He was never cared for and had a terrible childhood and youth. As an adult he had a normal life with a good job. The ill-treatment and his attempts to suppress the traumas he had experienced led him into a deep psychotic state in 1996 and incapacity to work. In the years that followed he was committed to a psychiatric hospital a number of times.
The sixth applicant, Mrs Tove Laila Strand, was born in November 1941 in Hønefoss. At the age of two she was taken from her mother and sent to Germany, where she lived with her grandparents until the age of six, when the Norwegian Red Cross returned her to her mother in Norway.
The sixth applicant's mother had previously been declared unsuited to assume the care for her, which was reflected in the manner she was treated by her mother. The latter continuously ill-treated her by hitting her, making burn marks with an iron, scratching her with needles and such like. From the age of six until she turned 15 her stepfather abused her sexually. She fled home. Her physical and psychological suffering gave her an ulcer.
Her grandparents in Germany were loving and caring persons and wished to keep her in their care. Had she been able to grow up with them she would most probably have had a normal life with a normal standard of living.
In Norway she felt it necessary to keep silent about her origins both in her social and her professional environment, due to the negative self-image that had been imposed on her. She is now so damaged from the ill-treatment that she is incapable of carrying out normal work.
The seventh applicant, Mr Paul Hansen, was born in April 1942 at Hurdal Verk. After a certain period he, together with 19 other children, was committed to the Godthåb Lebensborn Home in Bærum. In 1946 he was transferred to the Emma Hjort Psychiatric Hospital, where he stayed until 1950 when he was placed in an institution named Furuheim at Tjøme. After having spent periods at different homes under the mental healthcare services in the Vestfold County he returned to the Emma Hjort in 1960, where he stayed until 1965.
He submits that no expert assessment had been made as to the propriety of his being committed to these various institutions. His being wrongly placed had been a consequence of the authorities' decision to transfer the children at the Lebensborn Home to Emma Hjort. He was not exposed to any physical abuse, but the fact that he had been considered mentally retarded and had lived together with persons so considered during his entire upbringing had marked him considerably and constituted a great burden for him, substantially reducing his quality of life. He regularly had nightmares and has been suicidal. In 1984 he was granted NOK 80,000 in ex gratia compensation (billighetserstating) from the State for having received a deficient education.
On 10 December 1999 the first seven applicants instituted proceedings before the Oslo City Court (tingrett). They argued that because of their origin they had been the victims of violations of Articles 3, 8 and 14 of the Convention. They considered that the Norwegian State was responsible for the violations, inter alia because public officials had expressed attitudes towards the war children which had contributed to people adopting a negative perception of them, which in turn had led to infringements having been committed against the children. The State had failed to take any action to prevent the abuse, amongst others the measures recommended by the War Children Committee. The first seven applicants sought (1) a ruling to the effect that the State was responsible for violations of their fundamental human rights and (2) ordering the State to pay each of them compensation in an amount not exceeding NOK 2,000,000.
The City Court gave a decision and a judgment (kjennelse og dom) on 16 November 2001 with a common reasoning. It observed from the outset that not only did the parties disagree about the manner of resolution of the legal disputes but they also disagreed on what questions the City Court should determine. It found that item (1) of the first seven applicants' requests could reasonably be viewed as one for a declaratory judgment (fastsettelsesdom), whereas item (2) ought to be understood as a compensation claim.
The City Court considered that the State could not be held liable for any actions or omissions referable to the period between 1945 and the entry into force of the Convention in September 1953. Moreover, the various instances of abuse of which the first seven applicants complained could not be considered a continuing situation either for the purposes of national law (criminal or tort) or the Convention. In this regard the City Court stressed that it had to be demonstrated in each individual case, as the applicants had attempted to do, that he or she had been the victim of specific violations. The individual plaintiff's claims ought to be considered individually, and thus it was not decisive whether other war children had or had not been victims of violation over a shorter or longer period. Then the City Court went on:
“The violations to which [first seven applicants] have referred, concern very different offences. They concern different forms of violation – passivity on the part of the Government, statements from public individuals, serious crimes such as rape, and harassment by private individuals. Moreover, the violations have taken place over a period of 55 years. These are factors that militate strongly against an ongoing situation as this term is defined in compensation and criminal law.
This being so, in the City Court's opinion, it cannot be assumed that we are dealing with a single ongoing situation, in the sense that abuses committed in 1945 are not time-barred as long as the victim can today be subjected to a violation of a quite different character. As regards the relationship to the ECHR, it is the individual abuses against which the Convention protects the citizens.”
The City Court considered that item 2 of the first seven applicants' request was time-barred under section 9 of the Act relating to the Limitation Period for Claims 1979 (Lov om foreldelse av fordringer nr. 18 of 18 May 1979, hereinafter referred to as “the Limitation Act 1979”), according to which a compensation claim for non-pecuniary damage was time-barred 3 years after the injured person had become or ought to have become aware of the damage and the identity of the person responsible or, in any event, 20 years after the impugned act or other circumstances giving rise to liability. In addition, a 10-year rule which was in force until 1996 was applicable. The City Court was of the view that all of the first seven applicants' claims must have been time-barred under the 20-year rule, which meant that the claims were time-barred at the latest in 1985, 20 years after the youngest plaintiff turned 21. As regards the fifth applicant, he had alleged that the abuse occurred in 1945, 8 years before the entry into force of the Convention. The City Court added that, due to the long lapse of time, it was impossible to prove the alleged violations; no witnesses or documentary evidence could be adduced. Therefore the limitation of the claims did not just have a formal reason but also a substantive one.
As regards item 1 of the first seven applicants' requests, the City Court considered that they did not have an actual legal interest for the purposes of Article 54 of the Code of Civil Procedure. In reaching this conclusion the City Court had regard inter alia to its finding that the first seven applicants' compensation claims were time-barred; that the main criticism against the State, namely its failure to take certain measures in the Post War period, fell outside what could be made the subject of a review of the merits of the case; that the first seven applicants' interest in having historical truths ascertained by the judiciary could hardly be achieved given the very great number of war children compared to the number - 122 - of litigants in the proceedings.
Nor did the City Court find that making a declaratory judgment in the first seven applicants' case was warranted by other reasons. In cases concerning, as here, allegations of violations of human rights, this would depend on the character of the violation, whether the proceedings had been instituted within a reasonable time, whether other possible remedies had been exhausted; the importance of the case for the victim and the jurisprudential value of the ruling. However, in this case the central points of the first seven applicants' complaint against the State fell outside the temporal scope of the Convention; the possibilities of the judiciary to review policy choices were very limited; the pecuniary claims were time-barred; the applicants had had the opportunity to have their complaints of violations of the Convention examined by the courts; the case concerned mainly circumstances more than 55 years back in time; no information had been submitted to the effect that similar proceedings had been instituted in other countries nor that the treatment of war children had been worse in Norway than in other countries, a question to be assessed by researchers; in order for the 122 out of 10,000 litigants to succeed in the proceedings it would be necessary to provide documentary evidence beyond the first seven applicants' own statements; as was undisputed by them, the alleged violations were not capable of being proved, whereas criminal liability required proof beyond reasonable doubt and civil liability for misplacement and malpractice in respect of the children raised complicated questions.
In view of the above, the City Court found it difficult to see how the first seven applicants could benefit from further judicial review of the case. The parties were in agreement that the matter had not come to an end. In the view of the City Court, it would be best for all the parties involved to leave these issues to historians and politicians, not lawyers.
The City Court dismissed (avviste) the case by a decision (kjennelse) in so far as item 1 of the first seven applicants' requests were concerned and rejected the claim against the State by a judgment (dom) with respect to item 2. The first seven applicants had been granted free legal aid in the proceedings and the State had made no request for costs.
The first group of seven applicants then appealed to Borgarting High Court against the City Court's decision and judgment.
On 29 May 2002 the first group of applicants withdrew their appeal against the dismissal by the City Court of item 1 and reformulated their appeal against its judgment regarding item 2. As a result, the former part of the case was discontinued by the High Court in a separate decision, whereas the proceedings concerning the latter part were focused on the limitation issue.
By a judgment of 21 June 2002 the High Court, sitting with 3 professional judges and 4 lay judges, unanimously upheld the City Court's judgment, observing inter alia:
“[The first seven applicants] argue that their claims in the case are based on Convention violation, and are not claims in damages law in the normal sense. The High Court cannot see that there is any basis for this argument. Norway's accession to the European Convention on Human Rights did not entail an obligation to incorporate the Convention into Norwegian law; the Convention mandated Norwegian authorities, through legislation and otherwise, to safeguard these rights and ensure that they were not interfered with unless authorised under the Convention. [The first seven applicants] have argued that for many years since the Second World War their human rights have been seriously violated, in part through acts of persons for whom the Government must be seen as directly liable, in part because the authorities had failed to protect the war children and safeguard their rights. The High Court bases its consideration of the time-barring on this claim, without needing to take a position on its merits. [The first seven applicants] argue that these acts and omissions on the part of the authorities have caused them damage of both pecuniary and non-pecuniary nature. The claim advanced here by [The first seven applicants] regarding financial compensation for such injury is, in the High Court's view, a compensation claim, as this expression is used for example in the Damage Compensation Act 1969 and section 9 of the Limitation Act. ....
[The first seven applicants'] argument that claims for reparation for breach of human rights are not a damages claim in the normal sense cannot therefore succeed. The same applies to the argument that there were previously no statutory powers for the claim under Norwegian law, but that such powers were not created until the Convention was made part of Norwegian law in 1999. In this connection it is not necessary to discuss the detailed content of and development of the State's employer liability, the State's non-statutory objective liability and general liability for negligence in relation to public activities in the years that have elapsed since the Second World War. It follows from the presumption principle that the Norwegian compensation law must be presumed to be, and to have been, in conformity with our obligations under international law, so that the claims for damages could have been raised before the Human Rights Act entered into force, possibly in reliance on the rules of the Convention and the case law of the European Court of Human Rights.
It must further be regarded as reliable law that the provisions of the Convention are not an impediment to the individual countries' operating with limitation periods also in areas that are embraced by the Convention's rules. Such time-barring rules are deemed not to be in conflict with Article 6 of the Convention, on the right to have one's civil rights determined by a court, see the European Court of Human Rights' judgment in the case of Stubbings and Others v. the United Kingdom (judgment of 22 October 1996, Reports of Judgments and Decisions 1996IV, § 50-53). The time-barring rules must not be such as to make this right in reality illusory, for example by being unreasonably short. In the Stubbings case the European Court of Human Rights found that it was not incompatible with the Convention that a person's right to bring a civil action for damages for having being sexually abused as a child lapsed three years after that person came of age. It is stated in paragraph 66 of the judgment [...]: '.... Article 8 does not necessarily require that States fulfil the positive obligation to secure respect for private life by the provision of unlimited civil remedies in circumstances where criminal law sanctions are in operation.' As the High Court points out below, [the first seven applicants'] claims must be regarded as time-barred under the twenty-year rule of section 9 (2) of the Limitation Act. The High Court finds it clear that a limitation period of such duration is not incompatible with the Convention. A corresponding view of the power of the state to operate with civil-law time-barring rules follows from the Commission's decision in the case of Dobbie v. the United Kingdom ((dec.) no. 28477/95 16 October 1996) with references. Here it was not deemed to give rise to a violation of Article 8 that the right to bring an action for damages against a physician in connection with a breast operation was limited. Both the Court and the Commission have also noted that there is a 'limitation period' also as regards the right to bring cases before the Court itself, namely the six-month time-limit in former Article 25 and the current Article 35 § 1 of the Convention, a time-limit that is applied strictly, see the Dobbie decision.
It follows from the Dobbie and Stubbings rulings that it is not incompatible with Article 6 [...] or Article 8 [...], for the States to operate with limitation rules for civil compensation claims. Nor have States any general duty to pay damages to those subjected to abuse from private persons, see the European Court's decision in Stuart v. the United Kingdom ((dec.) no. 41903/98, 6 July 1999). It must follow from this that, also when a damages claim is brought directly against a State, it can be limited under national rules without impediment from the Convention, even if the claim concerns loss and injury in areas covered by the Convention. It is also reliable law that damages claims against public authorities are time-barred under section 9 of the Limitation Act, and that the rule applies regardless of the ground for liability, see Kjønstad & Tjomsland's 'Foreldelsesloven' (the Limitation Act) (1983) p. 75.
Under section 9(2) of the Limitation Act, compensation claims, including claims made outside contractual relations in respect of non-pecuniary damage, are time-barred 20 years after the damaging act or other circumstances giving rise to liability had ceased. The alleged ground for liability on the part of the State was [...] that the authorities had not carried out the necessary measures in order to secure the war children's human rights. As regards failures to act, the starting point for limitation is the time when the duty to act has ceased [...]. Such a duty for the State to act should in the view of the High Court have ceased at least when the [The first seven applicants] reached the age of maturity, which in the case of the youngest of them was in 1965. After this point in time there could not have been any duty for the authorities to launch an information- or attitude building campaign for persons who were born from a German father and a Norwegian mother in connection with the War, or to carry out other measures for the protection of their human rights. This cannot be altered by the fact that the [first seven applicants] have encountered abusive attitudes and speech because of their background even as adults. In this connection there is no basis for the [first seven applicants'] argument that the ground for liability consists of a continuing situation which has not ceased. That the effects of the damaging acts are durable and arise late does not mean that the 20 years' time-limit does not start to run. The High Court adds that, as pointed out by the City Court, the considerations which underlie the limitation rules apply fully in cases such as the present, where there would otherwise be question of adjudicating occurrences and causal events dating 40 to 50 years back in time.
The 20 years' rule in section 9 of the Limitation Act was new when the Act entered into force on 1 January 1980. It has later been amended, without it having any importance here. It follows from the transitional provision in section 31 that the [first seven applicants'] possible claims against the State were time-barred at the latest in 1985. The proceedings against the State were instituted in 1999. Therefore the City Court's judgment must be upheld. [...]”
The first seven applicants sought to appeal against the High Court's judgment to the Supreme Court, but on 11 December 2002 the Appeals Selection Committee of the Supreme Court refused them leave to appeal, finding it obvious that the appeal had no prospects of success.
In January and February 2002, the second and third groups of applicants (who had been refused to join the case of the first group) and the State agreed to stay the proceedings in their cases pending a legally enforceable decision in the case brought by the first seven applicants, which the City Court decided to accept.
In two decisions taken respectively on 2 June 2004 and 23 September 2004 the City Court upheld a request by the State to dismiss the suits from the second and third groups of applicants on the ground that none of the parties had requested resumption of the proceedings within the statutory two years' time limit.
On 2 February 2005 the applicants filed with the Court's registry copies of two research reports published in 2004, one entitled Staten og krigsbarna- En historisk undersøkelse av statsmyndighetenes behandling av krigsbarna i de første etterkrigsårene (the State and the War Children, a historic survey of the war children's treatment by the State authorities during the first Post War years) by Mr Lars Borgersrud and the other entitled Krigsbarns levekår, En registerbasert undersøkelse (War Children's Conditions of Life, a Register Based Survey), by Mr Dag Ellingsen.
The first report is an extensive study running to some 400 pages. It included (on p. 392) the information set out here below.
In July 1945, 30 Norwegian war children whom the Nazis had taken to Germany for adoption had been brought to Sweden, where they had been adopted. On 17 August 1945 the Government had issued a provisional decree (provisorisk anordning) depriving mothers who had married Germans after 9 April 1940 and their children of their Norwegian citizenship indefinitely, following which most of these women were deported. On 12 October 1945 the Government decided to stop the deportation project.
The provisions of the above decree had later been included in an Act of 13 December 1946. On 1 January 1949 the Act had been amended so as to make it possible for war children to re-acquire Norwegian citizenship; this did not apply to their mothers regardless of whether they continued to live in Norway. On 8 December 1950 a new Citizenship Act had been adopted, repealing the above-mentioned provisions. Under the new Act the mothers could re-acquire Norwegian citizenship and the children could have this restored as of right when they turned 18 or on application to the Government.
In the Act on Child Allowances adopted on 24 October 1946 war children were in effect excluded, which situation persisted until the entry into force on 1 April 1958 of the Bread Winner Insurance Act and Advance Payment Act, both adopted on 26 April 1957.
The second report stated (in a summary on p.3) that the living conditions of war children were a complex matter. On the one hand there were a number of findings that indicated that many of the war children had worse living conditions than others of the same age. The mortality during the period from 1960 until present was clearly higher among the war children. The mortality related to suicide was higher, as was that caused by heart and blood illnesses. A number of war children had become disability pensioners at a relatively young age. On the whole it suggested that a considerable proportion had health problems and, as a result, a lower quality of life. The divorce rate was clearly higher among the female war children than others. Fewer had higher education, the average income level was lower, and wealth was clearly less.
On the other hand there were several similarities between the war children and other persons of the same age, such as the frequency of marriage, the divorce rate among men and the frequency of parenthood. Many war children appeared to have had a life as ordinary people: they had an ordinary education, an average income, acceptable accommodation, were married and had children.
As regards the position of war children and their mothers under Norwegian law on citizenship and maintenance support, the Government submitted to the Court inter alia what is stated here below.
In order to avoid dual citizenships it followed from section 8 of the Citizen Act of 8 August 1924 that a Norwegian citizen would loose his/her citizenship if he/she gained another citizenship. The exemption to the rule was if he/she still lived in Norway. The general state of law in Europe prior to the Second World War was that a wife would be accorded her husband's citizenship after marriage. After the war it was deemed as offensive to the general sense of justice if Norwegian women, married to Germans, who therefore had become German citizens, should retain their Norwegian citizenship if they still lived in Norway. The aim of the 1945 decree, transformed into state law in 1946, was to make it possible for the Government to send the spouses, both being German (or Austrian) citizens out of Norway. Other countries had parallel legislation at the time.
Most of the amendments (in 1945 and 1946) to the Act of citizenship only applied to children of Norwegian mothers married to German nationals. Since most of the war children were born outside wedlock, they were not within the scope of this legislation. The same was the case as regards the Act on financial aid to mothers. This Act only applied to children of married women who had lost their Norwegian citizenship and did not discriminate against war children born outside wedlock. No acts were passed in the period after the war which would entail a clear discrimination of war children born outside of wedlock.
By 1950, mothers and children who had been deprived of their Norwegian citizenship because the mother had married a German national could reacquire their lost citizenship.
As from April 1958, benefits for war children who in effect had fallen outside the 1946 legislation because they were not Norwegian citizens could be sought under Bread Winner Insurance Act and Advance Payment Act, adopted in 1957. Pursuant to these Acts, the State was to advance child alimony to all children, including children with German fathers. Prior to these Acts the Norwegian authorities did not advance child alimony from any fathers, regardless of their nationality.
The Damage Compensation Act 1969, section 2-1 reads:
“An employer is liable for damage caused intentionally or negligently during an employee's performance of work or functions for the employer, taking into account whether the requirements, which the aggrieved person can reasonably make to the activity or service, have been neglected. The liability does not comprise damage or injury caused by the fact that the employee has exceeded the reasonable limits of his duties, considering the nature and range of the activity and the character of the work or function.
For the purpose of these provisions, the term 'employer' means the public authorities and anybody who employs a person in his service, whether for gainful activity or not.
For the purpose of these provisions, the term “employee” means anybody who performs work or functions in the service of an employer. The term 'employee' includes 'ombudsmann' in public service, officers and privates in military service and other persons performing compulsory service for public authorities, and inmates, patients and the like who take part in work in the prison authority's establishments, in health institutions etc.”
Under this provision, the State, as an employer, can be held liable irrespective of whether it has acted with negligence. Furthermore, the employee/employees do not have to be identified and the employer can be held liable if the cumulative acts of its employees fulfil the criteria laid down in section 2-1.
Prior to the 1969 Act, an individual could hold the State responsible for acts of its employees under general principles of law, developed in particular in judicial jurisprudence. Section 2-1 was aimed at codifying those principles.
According to the Government, the State, like private individuals, could also be held liable for damage caused by negligence, under the general principles on the law of tort. This could arise in relation to a variety of activities, including notably decision making and the exercise of its different supervision and control functions.
Financial claims, including claims for damages, may be lost through limitation. The Limitation Act of 18 May 1979 section 9 regulates the limitation period for claims for damages. The relevant parts of the section read:
“1. Claims for damages or redress shall be subject to a limitation period of 3 years from the date on which the injured party obtained, or should have himself acquired, necessary knowledge of the damage and the person responsible.
2. Nevertheless, the limitation period shall be 20 years after the commission of the tort or other ground for liability ceased. ...”
Until 1996 section 9 (2) also contained a 10 year limitation rule, which read:
“2. Nevertheless, the limitation period shall be at the latest 10 years from the date on which the damage occurred, or 20 years after the commission of the tort or other ground for liability ceased. ....”
Even if an individual war child cannot prove that he/she fulfils the legal criteria for obtaining damages from an individual or the State, he/she can apply for ex gratia compensation (billighetserstatning) from the State with respect to injury suffered, either due to the acts or omissions of public authorities or for instance criminal acts by individuals. This is meant to be the last resort to obtain damages when a person has suffered harm or distress. It is sufficient that the application describes the circumstances that form the basis for the claim, and if possible document these with for instance a doctor's or psychologist's certificate, testimony from family, friends or others that have knowledge of the applicant's situation etc. In particular if the events occurred quite some time back, as would be the case in relation to many war children, there are no strict requirements as to the evidence for the acts/omissions that form the basis for the claim. Furthermore, the relevant Ministry has an obligation to look into and examine the case. The arrangement of ex gratia compensation is not subject to any statutes of limitation.
Whether the claim for compensation is granted is based on a test of reasonableness. It is in particular relevant if the public authorities can be blamed for the harm. It is sufficient that a public body is to blame; the identification of the wrongdoer among the public official is not a condition. Even where the authorities were not to be blamed, compensation has been awarded, inter alia in cases of personal injury due to criminal acts committed before the Regulation concerning criminal injuries compensation (forskrift om voldsoffererstatning) was passed on 1 January 1975.
The amount of compensation awarded ex-gratia is based on an assessment of reasonableness. It does not attempt to cover all economic losses. The committee set to determine applications for ex-gratia compensation, composed by one former Supreme Court Judge and two members of Parliament, may award up to NOK 200 000 (in 2005). Cases where it is deemed necessary to award a higher amount or which are of a specific political nature are to be assessed by Parliament.
On 1 July 2005 new rules for ex gratia compensation for war children entered into force and new guidelines were published. As a result, the possibility for war children of obtaining such compensation was expanded; for example, injury caused by bullying was included in the guidelines. The more serious types of infringements against war children were already covered by the existing guidelines, such as sexual assault, wrongful placement in an institution, inadequate schooling and reproachable conduct on the part of employees in the child protection services, within or outside the orphanage. In such cases, compensation is awarded if the circumstances are made sufficiently probable and if they have caused particular suffering, loss etc for the war child. The fact that the individual is a war child does not in itself qualify for compensation.
It has been accepted that bullying may be particularly hard to prove after a long time. Thus, for war children Parliament accepted a special arrangement, whereby up to NOK 20,000 may be awarded on the basis of a credible personal statement. If there is documentation of more serious damage due to bullying, a higher amount may be awarded.


ITEMID: 001-57916
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 1995
DOCNAME: CASE OF FISCHER v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: No violation of Art. 6-1 (right of access);Violation of Art. 6-1 (publicly);Pecuniary damage - claim dismissed;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
JUDGES: C. Russo;John Freeland
TEXT: 7. Mr Josef Fischer was born in 1932 and lives in Vienna.
8. Since 1975 the applicant has owned a refuse tip at Theresienfeld in the Land of Lower Austria. He used to operate it under a revocable refuse-tipping licence granted to his predecessor in title on 30 July 1973 under the Water Rights Act 1959 (Wasserrechtsgesetz).
9. On 5 December 1986 the tipping licence was revoked by the Governor (Landeshauptmann) of the Land of Lower Austria on the grounds, inter alia, that dangerously high levels of toxic substances had been found in the groundwater (which forms part of a groundwater reservoir for drinking-water for over half a million people); several barrels found at the site contained unauthorised substances; and the site was in any event unsuitable for tipping - even ordinary domestic waste should not be dumped there.
10. Mr Fischer appealed to the Federal Ministry of Agriculture and Forestry (Bundesministerium für Land- und Forstwirtschaft), complaining also that he should have had the right to be heard. On 20 July 1987 the appeal was dismissed on the ground that it was absolutely essential to close the tip in order to safeguard water supplies, since it was not technically possible to render the site safe. As to the applicant’s right to be heard, he had had ample opportunity to make his views known and an oral hearing was not required in proceedings involving revocation of licences.
11. On 2 September 1987 Mr Fischer filed a complaint with the Constitutional Court (Verfassungsgerichtshof) alleging a violation of, inter alia, Article 6 para. 1 (art. 6-1) of the Convention, in that the administrative authorities had not granted his request for an oral hearing. He requested that a hearing be held before the Constitutional Court. On 14 March 1988, pursuant to Article 144 para. 2 of the Federal Constitution (see paragraph 22 below) the Constitutional Court declined to accept the applicant’s complaint. It found that the bulk of the complaint related to allegations that the ordinary law had been applied incorrectly. To the extent that the complaint did touch upon questions of constitutional law, it did not have sufficient prospects of success. No hearing was held.
12. On 6 August 1987, before his constitutional complaint, the applicant had lodged an appeal with the Administrative Court (Verwaltungsgerichtshof) in which he alleged that the decision of 20 July 1987 was unlawful and that the administrative authorities should have held a hearing. He requested that the decision be quashed and that a hearing be held before the Administrative Court.
On 21 September 1989 the Administrative Court dismissed the applicant’s complaint as ill-founded pursuant to section 42 (1) of the Administrative Court Act (see paragraph 18 below). The court found that an oral hearing before the Ministry had not been necessary and rejected the applicant’s request for such a hearing before the court itself under section 39 (2) (6) of the Administrative Court Act (see paragraph 21 below).
13. The following reasons were given in the judgment:
"The appellant submitted in the first place that in the reasons given for the decision at first instance the scope of the 1973 licence was wrongly restricted in terms of area; the revocation of the licence, which was upheld on appeal, without this question - raised in the appeal - having been dealt with, therefore remained contradictory. The Court can discern no such contradiction. The revocation by the water-rights authority of first instance, which was upheld by the respondent authority, related - according to the terms of the formal order - to the 1973 licence without any restriction. Similarly, where in the reasons given for the Land Governor’s decision of 5 December 1986 the words ‘where the gravel pit has already been closed’ are used when parcel 514-1 KG Theresienfeld is being particularised, they are merely taken from the decision of 30 July 1973 whereby the licence was granted. Moreover, the use of the expression ‘part of the area’ (Teilfläche) merely clarifies - in the context of setting out the earlier history - the meaning which the same authority attributed to the outline description in the decision whereby the revoked licence had been granted. This is not a legally binding determination, nor does it in any way restrict the revocation itself, which at all events applied to the 1973 licence in its entirety, regardless of how the indication ‘where the gravel pit has already been closed’ - which is not more closely defined - is to be understood. It is accordingly clear, without it being necessary to go into the appeal submissions in detail, that neither the aforementioned comment in the decision at first instance nor the absence of any reference to these issues in the impugned decision amounted to an interference with the rights of the appellant.
It is irrelevant whether the reservation of the right to revoke the licence under section 21 (1) of the Water Rights Act 1959 was properly included in the 1973 decision, as that decision became final and the aforesaid incidental provision became legally effective likewise. The Court agrees with the respondent authority and, on this point, the appellant that even where, as in the present case, a reservation of the right to revoke is not spelt out in more detail, revocation is justifiable only where there are sufficient objective reasons for it; these, however (and to this extent the Court’s view does not coincide with the one reflected in the decision appealed against), could only derive from considerations of public interest, since the right to revoke was not reserved in the interests of third parties. Ultimately, the revocation of a decision under the Water Rights Act can only be regarded as objectively justified if it can be considered necessary within the meaning of the Act; and that applies only where it does not serve interests that can be asserted under provisions of the Water Rights Act without any specific need for a revocation.
The appellant criticises the respondent authority for having confirmed the revocation of the water-rights licence for no valid reason.
The appellant complains that in the decision at first instance and in the impugned decision it is stated, among other things, that waste tipping in accordance with the terms of the licence could contribute to an increased potential hazard. In the decision at first instance the remark relating to an increased risk of this kind plainly goes back to a finding - also cited in the reasons - by the officially appointed medical expert that, in view of its position in the central area of the Mitterndorf basin, the site of the refuse tip was to be rejected on health grounds and represented a potential hazard to the groundwater. The same expert referred to a comment by the officially appointed technical expert, who had stated that by present-day criteria a renewal of the licence for a refuse tip on this site was to be ruled out. In the decision appealed against, the site of the tip as such was likewise described as problematical on the basis of the experts’ reports - in the expert opinion that is reproduced in the impugned decision it is stated that it was out of the question that areas where there were sources of groundwater suitable in quantity and quality for use as a water supply should be used for refuse tips - and the tipping of waste that endangered the groundwater was attributed to among other things the ‘imprecise wording of the licence’ of 1973. This last observation concerns the past, and the appellant cannot rely on the distinction between licensed and unlicensed tipping as set out in this Court’s decision of 19 May 1987, no. 86/07/0147, to rebut it. This distinction was indeed recognised partly in contradiction of the view that had been advanced by the appellant’s predecessor in title. It accordingly cannot be ruled out that, prior to publication of the court decision just mentioned, the operator of the tip disregarded the differences that are pointed out in it and which are of importance as regards authorised tipping of waste. As to the technical comments on the choice of site, however, these appear to the Court sufficient to justify the view that even authorised tipping was at least ‘problematical’ on the particular site.
The appellant further submitted that dumping in accordance with the licence had not so far been proved to have had any effects in the area around the tip; he referred to the report of 29 April 1986 by an officially appointed technical expert, in which, however, the possibility of groundwater contamination by domestic waste is also described in detail. In the expert report reproduced in the decision appealed against, reference was also made to the fact that a considerable length of time passed between the moment of pollution and the first observable signs of harmful substances in the subsoil or in the groundwater, a fact that had previously been regarded as pointing to the subsoil’s (only) seemingly unlimited cleansing and storing capacity and in many cases had led to an approach to the siting and licensing of refuse tips that would nowadays be regarded as untenable. The fear of adverse effects on the groundwater is thus not shown to be baseless - as the appellant’s objection amounts to saying - by even a single finding.
The appellant further submitted that in the impugned decision an additional argument in favour of revocation was wrongly put forward to the effect that waste which was dumped contrary to the terms of the licence was so mixed up with that which was tipped in accordance with it that it was in practice impossible to separate the two kinds. The appellant contended that this argument overlooked the fact that, according to the officially appointed technical expert’s opinion of 21 October 1986 on the issue of a general clearing up of the site, it was assumed that hazardous waste discovered on the site was separable from the other waste; in the decision at first instance, moreover, such a mixing up was a mere supposition. Apart from the fact that in describing the two types of waste as being ‘in practice’ inseparable (as was assumed), account was clearly taken of the practical difficulties which were mentioned in the same expert opinion, with express reference to the need to establish ‘a highly qualified water-supervision unit that must have appropriate facilities available to it for carrying out analyses and for the safe disposal of any hazardous waste’, this observation concerning the past is in any case of no vital importance for the revocation, which has its effects in the future, preventing future dumping.
The appellant pointed out that a mass of findings confirmed that there was no danger in the western part of the site, contrary to what was stated in the impugned decision; it followed that the cleaned-up western part of the site was ready for use for dumping in accordance with the terms of the licence. The passages from the administrative file which the appellant cites in evidence in this connection do not, however, support that assertion. In the opinion submitted on 23 April 1985 the domestic refuse deposited on the site is described by the expert as posing a threat to the groundwater, independently of the barrels to be disposed of. In a letter of 28 May 1985 from the district authority (Bezirkshauptmannschaft), which is also referred to by the appellant, it was admittedly announced that the cleaning-up operation had been completed, but at the same time the issue of what was to be done with the domestic waste whose existence had originally not been known about was also addressed. In an expert opinion of 15 May 1985, likewise cited by the appellant, it was confirmed that digging works were being carried out in the western part of the pit, but it was also noted that domestic waste had been found there and that it could not be ruled out that chemicals had been buried with it; furthermore, the possibility of sealing the site without removing the waste was rejected on technical grounds and because of the danger that barrels had been buried with it. In the district authority’s letter of 18 June 1986 it was stated that the domestic waste still remaining in the cleaned-up western area would be removed once the decision had been taken on cleaning up the entire site. Thus, it has not been made out that the western part of the site is free of any dangerous waste nor has the argument been refuted that further tipping of permissible waste, on top of the waste already on the site, must be stopped precisely for the purpose of removing that existing waste.
For these reasons and because, as set out in greater detail above, no further dumping of waste on the aforesaid site should be allowed - because there should be no refuse tip there at all and clearing-up work is still pending - it was not necessary for a ‘final cleaning-up programme’ to be in existence, as the appellant maintained, before further tipping under the licence could be stopped (by revocation of the licence). Nor is a cleaning-up programme thereby pre-empted; such a programme may very well make special licences necessary; and even a partial continuation of the current tipping operations until a cleaning-up project is embarked on could not on that account be regarded as justifiable.
The appellant also considered the weighing of interests to have been inadequate and to have produced the wrong result; this applied, on the one hand, to those municipalities which would in future be deprived of their facilities for dumping refuse, and, on the other, to the appellant, who would be financially ruined. As regards the aforementioned municipalities, the appellant cannot legally represent their interests inasmuch as they are the interests of third parties, and it is moreover clear that the danger posed by the dumped waste affects a much larger number of people, as is apparent from the fact that it is widely known that, owing to its size, the Mitterndorf basin serves as a reservoir for drinking-water. The same considerations of public interest are valid with regard to the economic interests of an individual; the respondent authority did not, as the appellant maintained, disregard the relevant considerations, since in the decision appealed against it said, among other things, that in the case in issue ‘the public interest in ensuring the supply of drinking-water outweighs the economic interest in continuing the operation of the tip’. It is equally untrue that the question of blame for the dumping of prohibited waste had a bearing on the revocation, as the revocation concerned the licence and thus the operation of the tip as permitted by that licence up to then.
The appellant also complains that he was not told the name of the hydraulic engineer who was officially appointed as an expert when his opinion was made known in the respondent authority’s communication (Vorhalt) of 18 March 1987. The appellant, however, did not contradict the comment in the decision appealed against that his lawyer had been informed of the expert’s name during an inspection of the entire file on 22 April 1987. As the appellant was familiar with the ‘original’ of the opinion concerned (it is referred to in the appeal), he must also have been aware of the exact date of the opinion, which was not given in the respondent authority’s communication. The appellant further criticised the same expert on the ground that his opinion contained no ‘findings of fact’, a matter to which reference had already been made in the reply to the authority’s communication. The way in which this point was dealt with in the impugned decision has been set out in the recital of facts. The technical opinion submitted in the appeal proceedings was an expert assessment of the same facts as those on which the first-instance authority had based its decision; the technical assessment in the appeal proceedings was intended - in view of the appellant’s appeal - precisely to throw light on whether the factual situation (which was essentially identical both at first instance and on appeal) should lead to the legal characterisation given it by the Governor; it was not a question of assessing changed or substantially supplemented facts. For this reason it was unnecessary for the expert appointed by the respondent authority himself to set out afresh the facts to be taken as a basis. In a case such as the present one there can be no question of the facts on which the expert opinion was based not being known or of a further special reference being necessary to how they came about. By ‘third-party documents’ (Fremdakten) - a term used several times in the expert report - is usually understood, as can easily be inferred from the context, documents that have not been drawn up by the authority (in this instance the respondent authority) itself; since the questions being dealt with always related to the refuse tip concerned, it is clear that what was meant were the water-rights documents of other authorities than the respondent authority which related to the tipping site. As to the appellant’s specific criticism to the effect that the expert did not make clear what he meant by ‘the abuses found’, it should be noted that immediately after that passage there follows a more detailed explanation, in particular through the reference to failures to comply with the decision of 21 September 1972 and condition 9 of the decision of 30 July 1973, by which is meant the occurrences which led to the revocation by the Governor on 16 May 1983 of the licence to dump distillation residues. The entire comment relating to this has little bearing on the revocation, however, because it was made by the expert only in connection with his general remarks on the need for precise definition of waste if there was to be any effective control of what was dumped. A separate reply to the question - posed in its observations in reply to the respondent authority’s communication and repeated in the present appeal - whether account had been taken of the fact that in the eastern part of the tip there was a compressed mass of domestic refuse about 18 metres thick on the floor of the site does not seem to the Court to be of decisive importance with regard to the revocation stopping future tipping in view of the fact that - as set out in greater detail in the present appeal - it can ‘now indisputably’ be assumed that ‘under a 15 to 18-metre-thick layer of highly compressed domestic refuse thousands of barrels of, in all probability, unauthorised dangerous solvents have been dumped there’ and that the area must be cleaned up - which precludes all further tipping.
The appellant complained that further details about the significance of the Mitterndorf basin for the water supply were lacking in the expert report and considered the reference it contained to the ‘expert opinions in the third-party documents’ and the ‘specialist literature’ to be insufficient. Attention need only be drawn in the first place to the regulations issued by the respondent authority as early as 1969 (Federal Gazette - Bundesgesetzblatt - no. 126), which define the groundwater conservation area on whose periphery the refuse tip is situated. Furthermore - in response to the appellant’s criticism - reference is rightly made in the impugned decision to the fact that the importance of the area was well known. The Environment Protection Agency’s (Umweltschutzanstalt) survey report of 17 February 1987, according to which a groundwater sample taken on 22 October 1986 had shown, among other things, that the chlorinated hydrocarbon content had further fallen, had no influence on the expert opinion in this context - this is confirmed in a note by the expert. In this connection, it must be borne in mind that the measurement was based on only a single sample and was merely ‘better’ than one from an earlier sample. Even the appellant does not infer from it that the dangerous eastern part of the site is thereby shown to be free of danger; if the licence continued in force, further tipping could not, in the expert’s view, be regarded as conducive to further improvement in the quality of the groundwater. The appellant’s objection that there was no water seepage through an open ‘compressed, 18-metre-thick’ layer of domestic refuse is impossible to understand. Since this waste was alleged to exist in the eastern part of the tip, it was on that account alone not unreasonable to prevent further tipping in accordance with the licence by revoking that licence, given the need - mentioned even by the appellant - for a cleaning up of the site. It may therefore be concluded that in this respect the alleged material defects in the expert opinion are non-existent.
The appellant is also wrong to maintain that the licence should only have been revoked after special appeal proceedings in which the appeal authority would have had to make its own investigation of the facts. The facts which the Governor took as a basis were set out in detail in the decision at first instance. The alleged defects were gone into in the appeal proceedings or have now been asserted in the present appeal. In both instances, however, the appellant partly relied on facts that were irrelevant to the issue of the revocation.
Nor does the Court agree with the appellant’s submission that the technical expert’s opinion in the initial appeal proceedings was defective because it contained legal arguments. In the section ‘Definition of waste, control of tipping’ there is firstly merely a discussion of stipulations in the revoked decision [to grant a licence] and then a mention of the applicability of the Poisons Act in connection with technical observations concerning water contaminants, with a reservation (‘... would have to be checked by the water-rights authority ...’); the question whether revocation was absolutely essential or whether defects under section 33 (2) of the Water Rights Act 1959 could be remedied is dealt with from an exclusively technical point of view; the closing remark on the subject is at all events inaccurately reproduced in the appeal inasmuch as the expert endorsed the revocation in the light not of legal but of economic requirements. Contrary to what the appellant maintained, there was no pre-emption of the legal assessment to be made by the respondent authority.
The appellant further complained that the respondent authority did not, as requested, seek further expert opinions. Reference is made in the appeal to possible alternatives to revocation and to an opinion of 29 April 1986 by the hydraulic engineer officially appointed as an expert by the Governor. The appellant inferred from this expert opinion that approval of measures he had planned would have meant that the revocation could have been avoided; in that opinion, however, it was suggested - on the assumption of ‘dangers which, if the principle that prevention is better than cure is applied’, ruled out ‘further tipping’ (and it was stated that even tipping of domestic refuse ‘undoubtedly’ increased the danger ‘significantly in quantitative terms’) and on the basis of the facts - that ‘the question of revoking the licence granted by decision of the Governor, ON 14’ (i.e. the decision of 1973), should be looked into, ‘as important assumptions, on which the issuing of the licence [had] been based’ had proved to be false. The expert opinion cited, which points in exactly the direction that was subsequently - in the last instance by the respondent authority - taken, was therefore an unsuitable basis for obtaining, as requested, further expert reports. Even if in the same context reference is made in the appeal to the expert report submitted in the water-rights proceedings of 18 November 1986 in support of the view that the ‘re-storage variant’ (final disposal of the ‘eastern refuse’ in the western part of the tip), which the appellant had suggested as an alternative to revoking the licence, was ‘technically feasible’, little is gained - particularly in view of the many discussions that, according to the administrative documents, had already taken place - in the way of showing that the additional investigations that were held to be unnecessary in the impugned decision are in fact needed.
Lastly, the Court cannot accept the appellant’s submission that an oral hearing should have been held for the specific purpose of considering the question of a revocation; on the one hand, no provision is made for a hearing for this purpose in the law, as the appellant himself concedes, and, on the other, issues relating to a cleaning up of the tip were discussed from a large variety of angles, most recently in the proceedings of 18 November 1986 which preceded the revocation by the first-instance authority, and for this reason it has not been shown that ‘the facts before the appellant authority [were] so inadequate that the holding or reholding of an oral hearing’ should have been regarded as ‘unavoidable’ (section 66 (2) and (3) of the General Administrative Procedure Act 1950).
The appellant has consequently not succeeded in showing that the licence was revoked on grounds that were not objective and thus unlawfully.
As the appeal is consequently unfounded, it must be dismissed pursuant to section 42 (1) of the Administrative Court Act.
The requested hearing was dispensed with under section 39 (2) (6) of the Administrative Court Act.
..."
14. Article 90 para. 1 of the Federal Constitution provides:
"Hearings in civil and criminal cases by the trial court shall be oral and public. Exceptions may be prescribed by law."
15. By virtue of Article 130 of the Federal Constitution, the Administrative Court has jurisdiction to hear, inter alia, applications alleging that an administrative decision is unlawful.
16. Pursuant to section 36 of the Administrative Court Act, proceedings consist essentially in an exchange of written pleadings. If one of the parties so requests the Administrative Court may hold a hearing which is in principle held in public (sections 39 (1) (1) and 40 (4)).
17. Section 41 (1) of the same Act reads as follows:
"In so far as the Administrative Court does not find any unlawfulness deriving from the respondent authority’s lack of jurisdiction or from breaches of procedural rules (section 42 (2), paragraphs 2 and 3) ..., it must examine the contested decision on the basis of the facts found by the respondent authority and with reference to the complaints put forward ... If it considers that reasons which have not yet been notified to one of the parties might be decisive for ruling on [one of these complaints] ..., it must hear the parties on this point and adjourn the proceedings if necessary."
18. Section 42 (1) states that, save as otherwise provided, decisions of the Administrative Court shall either dismiss a complaint as ill-founded or quash the contested decision.
19. By virtue of section 42 (2),
"The Administrative Court shall quash the impugned decision if it is unlawful
1. by reason of its content, [or]
2. because the respondent authority lacked jurisdiction, [or]
3. on account of a breach of procedural rules, in that
(a) the respondent authority has made findings of fact which are, in an important respect, contradicted by the case file, or
(b) the facts require further investigation on an important point, or
(c) procedural rules have been disregarded, compliance with which could have led to a different decision by the respondent authority."
20. Under section 63 (1) of the Administrative Court Act, if the court quashes the challenged decision, "the administrative authorities are under a duty ... to take immediate steps, using the legal means available to them, to bring about in the specific case the legal situation which corresponds to the Administrative Court’s view of the law (Rechtsanschauung)".
21. Section 39 (2) of the Administrative Court Act provides:
"Notwithstanding a party’s application ..., the Administrative Court may decide not to hold a hearing where
...
6. it is apparent to the Court from the pleadings of the parties to the proceedings before it and from the files relating to the earlier administrative proceedings that an oral hearing is not likely to clarify the case further."
22. Under Article 144 para. 2 of the Federal Constitution:
"The Constitutional Court may ... decline to accept a case for adjudication if it does not have sufficient prospects of success or if it cannot be expected that the judgment will clarify an issue of constitutional law. The Court may not decline to accept for adjudication a case excluded from the jurisdiction of the Administrative Court by Article 133."
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-68306
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: ECKER v. AUSTRIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Alexander Ecker, is an Austrian national, who was born in 1966 and lives in Linz. He was represented before the Court by Hintermayr, Krüger, Haunschmidt, Minichmayr and Burgstaller, a company of lawyers practising in Linz. The respondent Government were represented by their Agent, Ambassador H. Winkler, Head of the International Law Department at the Federal Ministry for Foreign Affairs.
On criminal information laid by the Linz Federal Police Office (Bundespolizeidirektion) on 26 November 1996, the Linz Public Proscutor's Office (Staatsanwaltschaft) decided to open preliminary inquiries (Vorerhebungen) against the applicant on suspicion of fraud in the context of investment management.
Between 10 December 1996 and 2 February 1999 the Linz Regional Court (Landesgericht) carried out the preliminary inquiries. On 16 January 1997 the applicant's premises were searched. The Regional Court also heard witnesses in Liechtenstein, Italy and Switzerland by way of letters rogatory (Rechtshilfeersuchen) and obtained an expert opinion on book keeping.
The Regional Court repeatedly transmitted the file back to the Public Prosecutor's Office for consultation and eventual further requests. It did so on 25 February, 11 April, 16 May, 16 September, 18 November and 29 December 1997, and on 14 January, 27 October and 10 December 1998 and on 22 January 1999. The Public Prosecutor's Office remitted the file on 3 March, 6 May, 21 May, 9 October and 19 November 1997, and on 2 January, 20 January, 2 November and 14 December 1998 and on 27 January 1999 respectively. On 9 February 1999, the Public Prosecutor's Office requested the Regional Court to institute preliminary investigations (Voruntersuchungen) against the applicant.
Having taken further evidence, the Regional Court transmitted the file to the Public Prosecutor's Office in October 1999, following which the Public Prosecutor's Office, on 9 November 1999, filed a bill of indictment (Strafantrag), charging the applicant with negligent bankruptcy (fahrlässige Krida) under Section 159 of the Penal Code (Strafgesetzbuch).
Subsequently, on 16 November 1999, the President (Vorsteher) of the Linz Regional Court assigned the case to another judge as the judge in charge had declared himself biased. On 6 September 2000 the case was again assigned to another judge due to the fact that the judge in charge had been assigned to other duties.
On 8 September 2000 the Regional Court transmitted the file to the Public Prosecutor's Office as, in the meantime, Section 159 of the Penal Code been amended. On 18 September 2000 the Public Prosecutor's Office declared that it would maintain the indictment.
On 12 February 2001 the Public Prosecutor's Office urged the Regional Court to hold an oral hearing.
On 5 March 2001 the Regional Court scheduled a hearing for 9 July 2001. On that day it held a hearing and postponed the proceedings for an indefinite time.
On 30 October 2001 the President of the Linz Regional Court assigned another judge to deal with the case as the judge in charge had moved to the Wels Regional Court.
Having held a further hearing on 26 February 2002, the Regional Court acquitted the applicant. The written transcript of the judgment was served on the applicant's counsel on 21 August 2002.
SS. 84 to 115 of the Code of Criminal Procedure (Strafprozeβordnung) concern the conduct of preliminary inquiries (Vorerhebungen) and preliminary investigations (Voruntersuchungen).
In order to procure the necessary evidence for the institution of criminal proceedings or for the closing of the file (Zurücklegung) on a criminal information, the Public Prosecutor may first have preliminary inquiries carried out by the investigating judge, the District Court or the police authorities (S. 88 § 1).
Where the Public Prosecutor is satisfied that there are sufficient grounds for bringing a criminal prosecution, he or she shall either request the institution of preliminary investigations or file a formal accusation (Anklageschrift, Strafantrag; S. 90 §1). According to S. 91 § 2 the preliminary investigations pursue the aim of provisionally examining the criminal charges laid against a person and of establishing the facts to the extent necessary to decide whether to discontinue the criminal proceedings or to commit for trial and prepare the taking of evidence at the trial.
According to S. 93 § 1 the preliminary investigations are in principle conducted by the investigating judge personally and directly.
Section 91 of the Courts Act (Gerichtsorganisationsgesetz), which has been in force since 1 January 1990, provides as follows.
"(1) If a court is dilatory in taking any procedural step, such as announcing or holding a hearing, obtaining an expert's report, or preparing a decision, any party may submit a request to this court for the superior court to impose an appropriate time-limit for the taking of the particular procedural step; unless sub-section (2) of this section applies, the court is required to submit the request to the superior court, together with its comments, forthwith.
(2) If the court takes all the procedural steps specified in the request within four weeks after receipt, and so informs the party concerned, the request is deemed withdrawn unless the party declares within two weeks after service of the notification that it wishes to maintain its request.
(3) The request referred to in sub-section (1) shall be determined with special expedition by a chamber of the superior court consisting of three professional judges, one of whom shall preside; if the court has not been dilatory, the request shall be dismissed. This decision is not subject to appeal."