ITEMID: 001-83245
LANGUAGEISOCODE: ENG
RESPONDENT: ALB
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF DRIZA v. ALBANIA
IMPORTANCE: 1
CONCLUSION: Violations of Art. 6-1;Violation of P1-1;Violation of Art. 13+P1-1;Pecuniary and non-pecuniary damage - financial awards (global) and Government to return the plot of land;Costs and expenses - claim dismissed
JUDGES: Josep Casadevall
TEXT: 5. The applicant was born in 1941 and lives in Tirana.
6. The relevant domestic proceedings concern an application for the restitution of land.
7. In pre-war Albania the applicant’s late father had owned a bakery in Tirana and a plot of land measuring 6,000 square metres In 1960 the Albanian authorities demolished the building and expropriated the land.
8. On 27 September 1994 the Tirana District Court restored the applicant’s property rights over his late father’s property pursuant to the Property Restitution and Compensation Act 1993 (hereinafter, the Property Act). The decision became final and binding at the latest on 11 October 1994.
9. As it was unable to return the original property, the Tirana City Council decided on 30 April 1996 that the applicant had a right to receive compensation in kind for the original property. It allocated him a piece of land situated two kilometres from the centre of Tirana and measuring 5,000 sq. m. The land was divided into two plots measuring, respectively, 1,650 sq. m. (hereinafter, the smaller plot) and 3,350 sq. m. (hereinafter, the larger plot).
10. By decision no. 621 of 20 June 1996 the Tirana Commission on the Restitution of Properties and Compensation (hereinafter referred to as the “Tirana Commission”) upheld the Tirana City Council’s decision.
11. On 15 August 1996 the applicant’s title to the land was entered in the Tirana Land Register.
12. In 1996 and 1997 a series of possession orders concerning the two plots of land were issued by the Tirana City Council and the Tirana District Court. However, the applicant was unable to recover possession from the occupants.
13. On 10 September 1997 he concluded a preliminary contract to sell the smaller plot.
14. F.Z., a former member of an agricultural cooperative, had previously been granted under Law no. 7501 of 19 July 1991 the right to use the smaller of the two plots allocated to the applicant.
15. On an unspecified date she brought a civil action in the Tirana District Court claiming full title over the smaller plot under Law no. 8053 of 21 December 1995. She also asked the District Court to set aside the Commission’s decision of 20 June 1996 in so far as it related to that plot.
16. On 10 October 1997 the Tirana District Court set aside the Commission’s decision relating to the smaller plot on the grounds that the Commission had first to award compensation to the user and to the former owner of the land.
17. The applicant lodged an appeal with the Tirana Court of Appeal claiming full title to the plot. He argued that, when the Commission reached its decision, the plot was State property that was available for allocation to former owners in lieu of compensation. He added that F.Z. was merely a user of the land at the time.
18. On 2 June 1998 the Tirana Court of Appeal allowed the applicant’s appeal, quashed the District Court’s decision as being defective in law and upheld the validity of the Commission’s decision concerning the applicant’s title.
19. On 17 December 1998 the Supreme Court (Administrative Division) deciding on the merits, upheld the applicant’s rights over the smaller plot of land that had been allocated as compensation for the original property. The judgment became final and binding on an unspecified date.
20. On an unspecified date, while the enforcement proceedings were in progress, F.Z. lodged an application with the Supreme Court for supervisory review (Rekurs në interes të ligjit) of the merits of the Supreme Court (Administrative Division’s) judgment of 17 December 1998 and of the Court of Appeal’s judgment of 2 June 1998, on the grounds that they conflicted with substantive law.
21. The application for supervisory review was examined by the Supreme Court (Joint Colleges). On 5 July 2001, approximately two and a half years after the final decision, the Supreme Court granted the application. On the same date, it quashed, by a majority, the judgments of 2 June 1998 and 17 December 1998 in favour of the applicant, and upheld the District Court’s decision of 10 October 1997 dismissing the applicant’s claims relating to the smaller plot of land. It found that the Commission’s decision had been based on a misinterpretation of the substantive law (Property Act 1993).
22. The applicant was neither informed of the supervisory-review proceedings nor invited to attend the hearings before the Supreme Court. He was not served with the Supreme Court’s judgment within the six-month time-limit for appealing and so did not appeal against it.
23. Of the fifteen Supreme Court judges who decided the case on 5 July 2001, three (B. C., N. SH. and M.S.) had been members of the panel which on 17 December 1998 had decided the merits of the case. A further three (Th. K., P.Z., and V.K.) had sat on the panel which on 7 December 2000 had decided the merits of the case in the proceedings concerning both plots of land (see paragraph 29 below). The first three judges were called upon to rule in the supervisory-review proceedings on their alleged misinterpretation of substantive law while the other three judges had to determine the merits of the case for the second time in the same proceedings.
24. In 1997 the State Supreme Audit Institution (Kontrolli i Larte i Shtetit), acting on its own behalf and at the instance of S. SH., the user of the larger plot of land allocated to the applicant, brought an action in the Tirana District Court for an order setting aside the Commission’s decision of 20 June 1996 in its entirety, on the ground that it had exceeded its jurisdiction by allocating land to the applicant.
25. On 22 December 1997 the Tirana District Court set aside the Commission’s decision in its entirety as being defective in law. It also held that the State had an obligation to pay the applicant compensation under the Property Act for a plot of land measuring 5,000 sq. m.
26. On an unspecified date the applicant lodged an appeal with the Tirana Court of Appeal seeking the reinstatement of the Commission’s decision allocating him the land.
27. On 9 April 1999 the Tirana Court of Appeal dismissed the applicant’s appeal and upheld the District Court’s decision.
28. On an unspecified date the applicant lodged an appeal with the Supreme Court (Civil Division) arguing that the lower courts had failed to rule on the question of the users’ title to the land.
29. On 7 December 2000 the Supreme Court (Civil Division), deciding the merits of the case, upheld the Court of Appeal’s judgment on the ground that the Commission had exceeded its jurisdiction by deciding on the form of compensation the applicant should receive for the loss of his original property. It noted that pursuant to a Council of Ministers’ decision of 13 May 1996, Commissions were to be set up by the municipal councils to assess compensation for land situated in tourist areas. These Commissions had yet to be established. Lastly, the Supreme Court upheld the applicant’s right under the Property Act to obtain the payment of compensation for a 5,000 sq. m. plot of land.
30. The applicant lodged an appeal with the Constitutional Court under Article 131 (f) of the Constitution, arguing that the Supreme Court’s judgments of 7 December 2000 and 5 July 2001 were unconstitutional.
31. The appeal was declared inadmissible by the Constitutional Court on 8 April 2002 pursuant to Article 31 of the Constitutional Court Act, as being “outside its jurisdiction”.
32. The applicant says that an apartment block has now been built on the larger plot of land by third parties and the apartments sold to, and occupied by, new owners. The smaller plot is occupied by temporary structures. The applicant has not received any compensation from the authorities.
33. The Albanian Constitution, in so far as relevant, reads as follows:
“1. The right of private property is protected by law. 2. Property may be acquired by gift, inheritance, purchase, or any other ordinary means provided for by the Civil Code. 3. The law may provide for expropriations or limitations in the exercise of a property right only in the public interest. 4. Expropriations or limitations of a property right that are equivalent to expropriation are permitted only if fair compensation is provided. 5. A complaint may be filed in court to resolve disputes regarding the amount or extent of compensation due.”
“In order to protect their constitutional and legal rights, freedoms and interests, or to defend criminal charges, everyone shall have the right to a fair and public hearing, within a reasonable time, by an independent and impartial court established by law.”
“State bodies shall comply with judicial decisions.”
“The Constitutional Court shall decide: ... (f) final complaints by individuals alleging a violation of their constitutional rights to a fair hearing, after all legal remedies for the protection of those rights have been exhausted.”
“1. Within two to three years from the date this Constitution enters into force, the Assembly, guided by the criteria of Article 41, shall issue laws for the just resolution of various issues relating to expropriations and confiscations that were effected before the approval of this Constitution.
2. Laws and other normative acts relating to expropriations and confiscations enacted before the entry into force of this Constitution shall continue to apply provided they are compatible with the Constitution.”
34. Under the Code of Civil Procedure 1996, which was in force at the material time, judgments became final in the following circumstances:
“Court judgments shall become legally binding on the expiration of the time-limit for lodging an appeal if no such appeal has been lodged. If the judgment is not quashed on an appeal to a higher court, it shall become legally binding when the higher court delivers its decision...”
35. Pursuant to the provisions in force at the material time supervisory review (Rekurs në interes të ligjit) was an extraordinary remedy that enabled courts to reopen proceedings after a judgment had become final. Between 1996 and its abrogation by Law no. 8812 of 17 May 2001 the supervisory-review procedure underwent several legislative changes.
“Final judgments, decisions and rulings of the colleges of the Supreme Court shall be amenable to supervisory review in the interests of the law for the reasons set forth in section 472 (a), (b) and (c) on an application lodged by the parties to the proceedings within three years from the moment the decision becomes binding.
The application for supervisory review will firstly be examined by a preliminary review panel of five judges and then by the full Supreme Court (Joint Colleges). ... Judges of the Supreme Court who sat as members of the division that delivered the judgment, decision or ruling or of the preliminary review panel shall not sit on the panel that conducts the supervisory review of the final judgment...”
36. The Property Restitution and Compensation Act (Ligji për kthimin dhe kompensimin e pronës) has undergone several amendments during the past fourteen years. The main changes to the first Property Act of 1993 came about as a result of two laws which entered into force respectively in 2004 and 2006. The original Act and these two amending Acts will hereinafter be referred to as the “Property Act 1993” the “Property Act 2004” and the “Property Act 2006” respectively.
The relevant provisions of each of these laws can be summarised as follows:
37. Under the Property Act 1993 former owners of properties expropriated by the relevant regime and the legal heirs of such owners had the right to claim ownership of the original properties. Upon ownership being determined they were entitled either to the restitution of the original immovable property or to an award of compensation either in kind (up to a maximum of 10,000 sq. m) or in value if any of the following conditions was met: the alleged property (1) was pasture, meadow, forestry land, or agricultural or non-agricultural land; (2) was not subject to Law no. 7501 of 19 July 1991; (3) was currently State-owned; or (4) had been designated as suitable for construction and was situated within the boundaries of a city.
Section 16 of the Act provided for the following forms of compensation in respect of property which could not be returned: (a) State bonds, equivalent to the compensation owed, with a first option over shares in State enterprises being privatised by the Government or in other activities carried on through the granting of loans; (b) an equivalent plot of land or a building site near to an urban area, in accordance with the general urban-development regulations; and (c) an equivalent plot of land in a tourist zone, in accordance with the general urban-development regulations.
The Council of Ministers had power to define detailed rules for determining how such compensation should be provided and the applicable time-limits.
38. The 1993 Act also instituted the Commission on the Restitution of Properties and Compensation (Komisioni i Kthimit dhe Kompensimit të Pronave) as the competent administrative body to deal with former owners’ claims to restitution and compensation. However, it did not provide a time-limit within which a decision could be appealed against, so preventing it from even becoming binding.
39. The Property Act 2004, which repealed the previous version, provided for two forms of restitution of immovable property, namely the return, under certain circumstances, of the original property and compensation in the event of the authorities being unable to return the original property. Restitution was not limited in size. The Act provided for five forms of compensation: (a) property of the same kind; (b) property of any other kind; (c) shares in State-owned companies; (d) the value of a State-owned property in the course of privatisation, and (e) a sum of money corresponding to the value attributed to the property at the time of the decision (section 11). The Act instituted the State Committee on Property Restitution and Compensation (Komiteti Shteteror per Kthimin dhe Kompensimin e Pronave), composed of five members elected by Parliament. Its role was to decide on the lawfulness of district committees’ decisions on restitution and compensation claims (sections 15 and 17). The Council of Ministers was to establish the rules and the criteria to be applied (sections 13).
40. Section 19 provided for the enforcement of decisions awarding compensation within the first six months of each financial year. Following its entry into force, anyone entitled to claim restitution or compensation was required to lodge an application with the District Committee by 31 December 2007. The Act granted the Committee a discretion to decide which form of compensation should be granted, but applicants could express their preference in writing. An appeal lay against the District Committee’s decision to the State Committee (section 20) and to the district courts within thirty days of the date of issue of the Committee’s decision.
41. On 28 April 2005 Parliament enacted legislation setting out the method by which immovable property would be valued for compensation purposes. Its implementation was left to the State Committee on Property Restitution and Compensation, which was to issue the site plans allowing the properties to be valued.
42. In order to comply with the committee’s awards of pecuniary compensation, section 23 of the 2004 Act provided for the establishment of a ten-year Property Compensation Fund, whose aim was to provide financial support for such awards. The 2004 Act was examined by both the Constitutional and the Supreme Courts.
On 24 March 2005 the Supreme Court (Joint Colleges) concluded that the Property Act of 2004 had no retroactive effect and that its provisions could therefore not have any impact on property rights recognised by administrative or court decisions dating from before its entry into force.
43. On 17 July 2006 the Property Act 2004 was amended by the Property Act 2006, which entered into force on 17 August 2006. It provided, inter alia, for the establishment of the Agency for the Restitution of Properties and Compensation, a new body competent to decide restitution and compensation claims (section 15). The new law repealed sections 11 (2), 19 and 20 of the 2004 Act which, inter alia, laid down the procedure for the enforcement of compensation awards.
44. Law no. 8053 of 21 December 1995 conferred on former members of agricultural cooperatives the right to request the title to land they were farming.
VIOLATED_ARTICLES: 13
6
P1
VIOLATED_PARAGRAPHS: 6-1
P1-1


ITEMID: 001-61702
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF KAYIHAN AND OTHERS v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of P1-1;Not necessary to examine Art. 14+P1-1;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient
JUDGES: Ireneu Cabral Barreto
TEXT: 4. The General Directorate of National Water Board, a state body responsible for dam construction, expropriated plots of land belonging to the applicants in Hilvan, Şanlıurfa in order to build the Atatürk Dam. Expropriation took place in November 1994. A committee of experts assessed the value of the plots of land belonging to the applicants and this amount was paid to them when the expropriation took place.
5. Following the applicants' requests for increased compensation, the Hilvan Court of First Instance awarded them 3,878,470,910 Turkish Liras (TRL) of additional compensation plus interest at the statutory rate of 30% per annum, namely the rate applicable at the date of the court's decision. The domestic court had fixed 8 January 1995 as the date from which the statutory rate of interest run. On 12 March 1996, on the Directorate's appeal, the Court of Cassation upheld the first instance court's decision. On 7 November 1997 the administration paid 8,716,708,000 Turkish Liras (TRL) as the additional compensation awarded to the applicants together with the interest.
6. The relevant domestic law and practice are set out in the Aka v. Turkey judgment of 23 September 1998 (Reports of Judgments and Decisions 1998-VI, pp. 2674-76, §§ 17-25).


ITEMID: 001-4496
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 1998
DOCNAME: SCHWICKERATH v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Matti Pellonpää
TEXT: The applicant, born in 1938, is a German national. He is a businessman by profession. When lodging his application, he was detained in a prison in Siegburg.
A.
I. The criminal proceedings against the applicant
On 31 July 1996 the applicant was arrested on suspicion of having committed burglary.
On 24 January 1997 the Kleve District Court (Amtsgericht), having heard witnesses and taken expert evidence, convicted the applicant of several counts of burglary and sentenced him to two years and seven months' imprisonment. In these and the ensuing proceedings defence counsel assisted the applicant.
On 24 July 1997 the Kleve Regional Court (Landgericht), following an oral hearing and having again taken evidence, dismissed his appeal.
On 9 January 1998 the Düsseldorf Court of Appeal (Oberlandesgericht) dismissed the applicant's appeal on points of law.
II. The control of the applicant’s correspondence
On 21 November 1997, in the course of his detention qualifying as detention on remand under German law, the applicant complained with the Presiding Judge of the Regional Court about the opening of his letters addressed, inter alia, to the European Commission of Human Rights.
By letter of 26 November 1997, the Presiding Judge informed the applicant that the control of a remand prisoner's correspondence was not subject to any limitation. He stated that the Execution of Sentences Act (Strafvollzugsordnung) did not apply to remand prisoners. In his view, the Rules on Detention on Remand (Untersuchungs-haftvollzugsordnung) did not prevent him from reading such correspondence.
On 6 January 1998 the Kleve Regional Court dismissed the applicant's objections, considering that pursuant to the Rules on Detention on Remand, only letters addressed to, inter alia, the Commission were exempted from control. This exemption did not apply to correspondence addressed to a remand prisoner.
On 20 January 1998 the Düsseldorf Court of Appeal dismissed the applicant's appeal as having lost its purpose (gegenstandlos). The Court of Appeal noted that the applicant was no longer detained on remand, as his conviction had meanwhile become final.

III. The proceedings with the Federal Constitutional Court
On 24 September 1997 the applicant lodged a constitutional complaint (Verfassungsbeschwerde) with the Federal Constitutional Court (Bundes-verfassungsgericht), which he later amended. In his submissions, he complained generally about the unlawfulness of numerous decisions, which he joined. These documents did not include the German court decisions regarding his above conviction nor the control of his correspondence as remand prisoner.
On 10 February 1998 the Federal Constitutional Court refused to entertain his constitutional complaint. The Constitutional Court considered that, although having been repeatedly informed about the conditions of lodging a constitutional complaint, the applicant had merely submitted numerous documents and - without having stated any reasons of unconstitutionality - generally requested the Court for an investigation.
B. Relevant domestic law
Pursuant to Article 93 § 1 of the Basic Law (Grundgesetz), the Federal Constitutional Court shall rule, inter alia, on constitutional complaints which may be lodged by any person who considers that the public authorities have infringed one of his or her fundamental rights or one of his or her rights as guaranteed under Articles 20 § 4, 33, 38, 101, 103 and 104 of the Basic Law.
The composition and functioning of the Federal Constitutional Court are governed by the Federal Constitutional Court Act (Gesetz über das Bundesverfassungsgericht), as amended in 1993.
Sections 90 to 96 of that Act concern constitutional complaints lodged by individuals.
According to section 90 (1), any person who claims that one of his basic rights or one of his rights under Articles 20 § 4, Articles 33, 38, 101, 103 and 104 of the Basic Law has been violated by public authority may lodge a complaint of unconstitutionality with the Federal Constitutional Court. These rights include rights regarding the fairness of proceedings and the rule of law, and the right to respect for correspondence.


ITEMID: 001-70113
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF İ.A. v. TURKEY
IMPORTANCE: 1
CONCLUSION: No violation of Art. 10
TEXT: 4. The applicant was born in 1960 and lives in France.
5. He is the proprietor and managing director of Berfin, a publishing house which in November 1993 published a novel by Abdullah Rıza Ergüven entitled “Yasak Tümceler” (“The forbidden phrases”). The book conveyed the author's views on philosophical and theological issues in a novelistic style. Two thousand copies of it were printed in a single run.
6. In an indictment of 18 April 1994, the Istanbul public prosecutor (“the public prosecutor”) charged the applicant under the third and fourth paragraphs of Article 175 of the Criminal Code with blasphemy against “God, the Religion, the Prophet and the Holy Book” through the publication of the book in question.
7. The public prosecutor's indictment was based on an expert report drawn up at the request of the press section of the Istanbul public prosecutor's office by Professor Salih Tuğ, dean of the theology faculty of Marmara University at the material time. In his report of 25 February 1994 the expert observed:
“... the author arbitrarily uses theories about the physical substance of the universe, creation and the existence of natural laws to sway readers' minds towards the conclusions he wishes to be drawn from the book. In particular, in the passages on theology he imprisons readers within the limits of his own views, which are devoid of all academic rigour. ... He criticises the beliefs, ideas, traditions and way of life of Anatolian Turkish society by adopting the independent and nonconformist viewpoint of the leaders, thinkers and scientists of the Renaissance in order to enlighten and advise our people as he sees fit. ... This way of thinking, based on materialism and positivism, leads to atheism in that it renounces faith and divine revelation ... Although these passages may be regarded as a polemic in support of the author's philosophical views, it may be observed that they also contain statements that imply a certain element of humiliation, scorn and discredit vis-à-vis religion, the Prophet and belief in God according to Islam ... In the author's view, religious beliefs and opinions are mere obscurities, and ideas based on nature and reason are described as clear-sighted. The author describes religious faith as a 'desert mirage', a 'primitive idea' and 'desert ecstasy', and religious practices as 'the primitivism of desert life'. ...”
8. In his report the expert quoted numerous passages from the book under review, in particular:
“... just think about it, ... all beliefs and all religions are essentially no more than performances. The actors played their roles without knowing what it was all about. Everyone has been led blindly along that path. The imaginary god, to whom people have become symbolically attached, has never appeared on stage. He has always been made to speak through the curtain. The people have been taken over by pathological imaginary projections. They have been brainwashed by fanciful stories ...
... this divests the imams of all thought and capacity to think and reduces them to the state of a pile of grass ... [regarding the story of the Prophet Abraham's sacrifice] it is clear that we are being duped here ... is God a sadist? ... so the God of Abraham is just as murderous as the God of Muhammad ...”
The expert concluded his report as follows:
“The passages which I have quoted from the book form the actus reus of the offence provided for in Article 175 of the Criminal Code. As regards the mens rea, my analysis shows that it has been made out, especially since the author entitled his book 'The forbidden phrases'.”
9. In a letter of 28 June 1994 to the Istanbul Court of First Instance, the applicant contested the expert report. He requested a second opinion, arguing that the book was a novel and should have been analysed by literary specialists, and questioned the expert's impartiality.
10. On 2 November 1995 a committee of experts, composed of Professors Kayıhan İçel, Adem Sözüer and Burhan Kuzu, submitted its report.
11. In a letter of 19 April 1996 to the Court of First Instance, the applicant disputed the accuracy of the second expert report and argued that it was a copy of the first report.
12. On 24 April 1996 the applicant submitted before the Court of First Instance that the book was neither blasphemous nor insulting within the meaning of the third paragraph of Article 175 of the Criminal Code and merely conveyed its author's philosophical views.
13. In a judgment of 28 May 1996, the Court of First Instance convicted the applicant and sentenced him to two years' imprisonment and a fine. It commuted the prison sentence to a fine, so that the applicant was ultimately ordered to pay a total fine of 3,291,000 Turkish liras (equivalent at the time to 16 United States dollars). In its reasoning the court referred to the second expert report and cited the following passage from the book:
“Look at the triangle of fear, inequality and inconsistency in the Koran; it reminds me of an earthworm. God says that all the words are those of his messenger. Some of these words, moreover, were inspired in a surge of exultation, in Aisha's arms. ... God's messenger broke his fast through sexual intercourse, after dinner and before prayer. Muhammad did not forbid sexual relations with a dead person or a live animal.”
14. On 3 September 1996 the applicant appealed to the Court of Cassation. In his grounds of appeal he submitted that in the book in question the author had merely expressed his views, and challenged the content of the expert reports.
15. On 6 October 1997 the Court of Cassation upheld the impugned judgment.
16. The applicant was notified of the final judgment by means of a payment order postmarked 2 December 1997.
17. The third and fourth paragraphs of Article 175 of the Criminal Code provide:
“It shall be an offence punishable by six months to one year's imprisonment and a fine of 5,000 to 25,000 Turkish liras to blaspheme against God, one of the religions, one of the prophets, one of the sects or one of the holy books ... or to vilify or insult another on account of his religious beliefs or fulfilment of religious duties ...
The penalty for the offence set out in the third paragraph of this Article shall be doubled where it has been committed by means of a publication.”
18. Section 16(4) of the Press Act (Law no. 5680) provides:
“With regard to offences committed through the medium of publications other than periodicals, criminal responsibility shall be incurred by the author [or] translator ... of the publication which constitutes the offence, and by the publisher. ...”
NON_VIOLATED_ARTICLES: 10


ITEMID: 001-108201
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: COMMITTEE
DATE: 2011
DOCNAME: CASE OF SZECHENYI v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: András Sajó;Paulo Pinto De Albuquerque
TEXT: 4. The applicant was born in 1955 and lives in Szentendre.
5. On 29 August 1996 A.P. filed an action for divorce and child custody against the applicant before the Pest Central District Court. She further indicated in the motion that she wished to settle the division of matrimonial property in separate legal proceedings.
6. On 6 July 1999 the plaintiff requested the District Court to establish her ownership of a common real estate and to divide the matrimonial property.
7. After having held several hearings, the District Court delivered a partial judgment on 14 April 2000, dissolving the parties’ marriage, deciding about the child’s placement and regulating the applicant’s access rights. On appeal the Budapest Regional Court upheld the first instance judgment on 6 February 2001.
8. As regards the division of matrimonial property, the District Court delivered its judgment on 24 November 2004, which was partly modified on appeal by the Budapest Regional Court on 24 May 2005.
9. Despite the final judgment regulating the applicant’s access rights (see paragraph 7 above), the mother failed to comply with the arrangements, therefore preventing the applicant from seeing his son.
10. On 16 April 2002 the applicant brought an action before the Budapest II/III District Court, requesting the modification of his child’s placement. Moreover, he requested joint exercise of his parental rights related to the management of his child’s property. He claimed that the mother had not acted in the child’s best interest when concluding an exchange agreement concerning a real estate in the child’s property, which had been approved by the competent guardianship authority on 9 July 2001.
11. On 28 May 2003 the District Court dismissed the applicant’s action. On appeal, the Budapest Regional Court upheld the first-instance judgment on 29 January 2004.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-85846
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: HOUDART AND VINCENT v. FRANCE [Extracts]
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicants, Mr Philippe Houdart and Mr Jérôme Vincent, are French nationals who were born in 1957 and live in Neuilly-sur-Seine and Paris respectively. They were represented before the Court by Mr Bigot, a lawyer practising in Paris.
The facts of the case, as submitted by the applicants, may be summarised as follows.
The applicants are doctors. At the material time, although they remained registered with the Medical Association (ordre des médecins) for the city of Paris, they were not practising medicine but were working as journalists for “Sciences et Avenir”, a monthly science magazine for the general public of which they were the editor-in-chief and deputy editor.
Issue number 619 of the magazine, published in September 1998, was entitled “Hospitals, 1998 edition” with the following coverlines: “League-table of 512 French hospitals”, “Best results: the top 86 facilities”, “Blacklist of problem hospitals” and “Exclusive: mortality in your hospital”.
It was stated in the magazine that this special issue had been produced by the applicants, without their status as doctors being mentioned, and by a third journalist who was not a doctor. Its contents included a league-table of the 50 best and 50 worst hospitals in four specialist fields. They were ranked according to three criteria: their activity, based on health-establishment data from the PMSI (medicalised information system programme); mortality, assessed by reference to a national mortality indicator for patients in the same age bracket and with similar medical conditions; and notoriety, which was in fact measured by the attractiveness of the hospital for patients from outside the département. The combination of these criteria produced an overall rating out of 20. Information letters and requests for explanations were also sent to the directors of hospitals where major shortcomings had been found.
Saint-Girons Hospital ranked thirteenth in the list of the 50 hospitals with the worst results in the field of digestive surgery, with an overall rating of 3.81 out of 20 and a mortality rate 2.3 times higher than the norm.
On 8 October 1998 Doctor Maestracci, head surgeon at Saint-Girons Hospital, lodged a complaint with the département council (conseil départemental) of the Medical Association for the city of Paris. He criticised the applicants for the highly inaccurate nature of their investigation, as a result of using inappropriate criteria, failing to take account of specificities related to the precise type of medical condition and not distinguishing between emergency and scheduled admissions. Moreover, in his opinion there had been no subsequent moderation, whether in the commentary or in the choice of persons interviewed. He thus considered that his reputation and that of his staff had been seriously impugned, all the more so because he was working in a small town. He lastly argued that the investigation, by casting doubt on the quality of this local-community medical facility, might lead to inappropriate attitudes on the part of patients, particularly in the event of an emergency.
By a decision of 10 February 1999, the département council referred the complaint to the Medical Association's regional council for Ile-de-France and requested to be joined to the proceedings on account of a breach of Articles 13 and 31 of the Code of Professional Conduct for medical practitioners. The rapporteur from the département council made the following submissions in particular:
“Whilst the seriousness of the journalists' work is not at issue, it does not appear upon reading the article that any disclaimer as to the limits of the methodology used has been clearly indicated.
The headings of the articles and paragraphs and the comments inserted in the boxes add a sensationalist tone which turns a report into an indictment.
Lastly, the possibilities for the criticised heads of department and hospital directors to defend themselves have been very limited.
Generally-speaking, the specific case of Saint-Girons Hospital raises the issue of the limits to the transparency of medical information. In the long term such transparency is desirable, but in the short term the beneficial effects of selecting the most efficient services for patients may be counter-balanced by the negative repercussions of anxiety-provoking remarks for a section of the population that is limited in its choice of hospital treatment by age, geography or social situation.
Prudence and concern about the repercussions of remarks among members of the public, as required by Article 35 [sic] of the Code of Professional Conduct, do not seem to have guided the authors, who should have ensured that the limits to their work were made clear and, in such a sensitive area, should have avoided provocative headings.”
In a decision of 23 May 2000 the regional medical council dismissed the applicants' plea of inadmissibility, which had been based on the possibility of raising the defences available under the Freedom of the Press Act of 29 July 1881, and found as follows:
“Notwithstanding the existence of the Press Act of 29 July 1881, it is clear that everyone is free to use the means of his choosing to enforce his rights without such possibility being open to challenge.”
The regional council gave the two applicants a warning (avertissement) based on the following reasoning:
“On the basis of data that could be regarded as objective, albeit open to debate and debated, Doctors Houdart and Vincent, by inserting crossheads, boxes and passages in italics, transformed an informative article into a sensationalist one ...
By placing the unwritten ethics of journalists before those of doctors, which have been codified in a regulatory text, they crossed a boundary which must not be overstepped, especially as the Code of Professional Conduct for medical practitioners has the aim of protecting patients – a section of the population that is weak both physically and psychologically. It cannot validly be argued that Doctors Houdart and Vincent submitted their article to the magazine without concerning themselves with the publication or without being aware of the sensationalist additions designed at least to lure readers and perhaps to boost sales; if that were the case, they failed in their obligation to verify the ultimate and potential use of their statements or the possible impact of those statements on the general public.
In this connection it is ineffective to claim that, since they were not practising medicine, Doctors Houdart and Vincent were not bound by the provisions of the Code of Professional Conduct for medical practitioners; on the contrary, their voluntary registration with the Medical Association shows their desire to abide by that Code, especially the provisions in the first section dealing with the general duties of doctors.
After studying the material in the file and hearing representations from the parties, it appears that Doctors Houdart and Vincent interpreted information to give it a sensationalist and derogatory character, thus causing damage, perhaps unintentionally, to the complainant Doctor Maestracci and to his patients, which is even worse. In these circumstances it is appropriate, in order to reiterate the need for medical ethics, to impose a penalty in the form of a warning.”
The applicants, relying in particular on Articles 6 and 10 of the [European] Convention [on Human Rights], then lodged an appeal with the National Medical Council.
On 21 November 2001 the disciplinary section of the National Medical Council dismissed a complaint by the applicants concerning the rapporteur's participation in the deliberation of the regional council, finding that his duties were consonant with the principle of impartiality enshrined in Article 6 § 1 of the Convention. The disciplinary section further found that the applicants had breached their duty of care when imparting information to the public, as provided for in Article 13 of the Code of Professional Conduct for medical practitioners:
“Doctors Houdart and Vincent were, at the material time, respectively the editor-in-chief and deputy editor of the magazine 'Sciences et Avenir', and it was in their capacity as journalists that they wrote the offending articles published in the September 1998 issue of that magazine. The fact that they were not practising medicine, that the acts were committed in the context of their work as journalists and that they did not invoke their status as doctors is not capable of precluding the application of the Code of Professional Conduct for medical practitioners, by which every doctor remains bound once he or she is registered with the Medical Association. This fact obliges the disciplinary body, which has jurisdiction to rule on breaches by doctors of the Code of Professional Conduct for medical practitioners, only to reconcile the ethical duties of doctors with the requirements of the freedom of expression afforded to journalists. In that latter respect, whilst the first paragraph of Article 10 of the European Convention on Human Rights guarantees freedom to impart information and ideas, the second paragraph of that Article stipulates that the exercise of this freedom, carrying with it duties and responsibilities, may be subject to such restrictions or penalties as are necessary, in particular, for the protection of the reputation or rights of others ...
... the right for doctors to inform the public about the quality of hospital services, even designated by name, and to give a critical assessment of some of them, cannot be called into question, provided only that in presenting their analyses they do not breach the duty of care by which they are bound under the above-mentioned provisions of the Code of Professional Conduct. Whilst they set out the criteria by virtue of which they had drawn up a league-table of hospitals, they failed to take the precaution, which was all the more necessary as the publication was intended for the general public, of indicating the limits and the relative nature of a qualitative analysis based on data from the PMSI (medicalised information system programme), which they presented, by contrast, on page 36 of the publication, as 'an outstanding tool with remarkable accuracy'. Not only are the published results presented as unquestionable and scientifically established but they are also accompanied by comments and headings such as “Its hospitals make France sick”, “Blacklist of problem hospitals”, and “underperforming facilities can be found virtually everywhere”, the purpose of which is not to inform patients but to dramatise the information without any concern for the repercussions of this presentation on the patients who use services whose quality has been seriously impugned. Having regard to the applicants' level of responsibility in the publication, they cannot claim that they are mere employees working under the authority of the magazine's management without any right of scrutiny in respect of the articles published, nor that the presentation of the facts, the headings and the comments are the work solely of the publication director and were not even tacitly approved by them ...”
The applicants then lodged an appeal on points of law with the Conseil d'Etat. They submitted that the professional disciplinary bodies did not have jurisdiction in respect of doctors who were not practising medicine professionally. They further complained that they had been deprived of a fair hearing, within the meaning of Article 6 § 1 of the Convention, as they had not been given prior knowledge of the rapporteur's report to the two professional bodies. They lastly observed that the application of the Code of Professional Conduct for medical practitioners to doctors not practising medicine, in respect of acts they committed while engaged in the activity of journalism, and without their status as doctor being invoked, constituted a mistake of law. They based that latter argument on the wording of Article 13 of the Code of Professional Conduct for medical practitioners, which referred only to “participation in an educational and health-related action of public information” and on the incompatibility between the guarantees attaching to the status of journalist under the Act of 29 July 1881 and the rules of medical ethics.
On 23 February 2004 the Conseil d'Etat dismissed the applicants' appeal on points of law on the grounds that the professional disciplinary bodies did have jurisdiction because the applicants were registered with the Medical Association, that the report – simply a statement of facts – drawn up by the rapporteur appointed by the chairman of the disciplinary section did not necessarily have to be communicated to the parties, and that Article 13 of the Code of Professional Conduct for medical practitioners could apply to acts relating to the applicants' activity as journalists:
“It transpires from the provisions of the above-mentioned Article 1 of the Decree of 6 September 1995 that the disciplinary bodies of the Medical Association have jurisdiction, in connection with proceedings brought before them, to assess the conduct of any registered doctor with regard in particular to the provisions of the Code of Professional Conduct for medical practitioners. It can be seen from the material in the file submitted to the tribunal of fact – and it is not in dispute – that Mr Houdart and Mr Vincent were, at the time of the impugned acts, registered with the Medical Association. Accordingly, these doctors are not justified in arguing that the disciplinary sections of the Ile-de-France regional medical council and of the National Medical Council were acting ultra vires in ruling on the breaches of professional duty that they were alleged to have committed in respect of certain articles published in a magazine under their management. The disciplinary section of the National Medical Council did not commit any mistake of law when it found that Article 13 of the Code of Professional Conduct for medical practitioners was applicable to facts relating to the applicants' activity as journalists.”
...
...
Decree no. 95-1000 of 6 September 1995 laying down a Code of Professional Conduct for medical practitioners reads, in relevant part, as follows:
“The provisions of the present Code shall be binding on medical practitioners who are registered with the Medical Association ...”
“When a medical practitioner participates in an educational and health-related action of public information, regardless of the means of dissemination, he shall only impart information that has been confirmed, shall act with care and shall be concerned about the repercussions of his remarks among members of the public. In such a context he shall refrain from courting publicity, whether for personal reasons, for the benefit of bodies for which he works or to which he provides assistance, or in support of a cause that is not in the general interest.”
“All medical practitioners shall abstain, even when not exercising their profession, from any act that might bring discredit upon that profession”.
...


ITEMID: 001-99865
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF ALEKSANDR SMIRNOV v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 3 (procedural aspect);No violation of Art. 3 (substantive aspect)
JUDGES: Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste
TEXT: 5. The applicant was born in 1970 and lives in Yevpatoriya.
6. On 26 March 2002 the applicant was arrested on suspicion of theft. He was taken to Yevpatoriya Police Base Station No. 8 («Опорний пункт охорони правопорядку № 8»), where the police body-searched him and discovered, in the presence of two attesting witnesses, two packets of opium extract. The record of the search and seizure, which contained a signature appearing to be that of the applicant, indicated that he had admitted having bought those drugs for his own use. However, once the drug seizure was documented, the applicant cut his neck with his key-ring as an indication of protest. The police called an ambulance, which documented the injury as being of a minor nature and provided the applicant with the required aid.
7. The applicant was placed under three-day administrative detention pending clarification of all the circumstances of the supposed drug offence.
8. On the same date he was delivered to the Yevpatoriya Local Police Precinct («РОВД м. Євпаторія»), where, according to the applicant, police officer R. beat him severely.
9. According to the applicant, R. asked him not to raise any complaints in exchange for a promise that the police would turn a blind eye to any future misdemeanours from his side. The applicant accepted this.
10. On 26 March 2002 he was delivered to the Yevpatoriya Temporary Detention Facility, where he was placed in a cell shared by some twelve inmates. According to the registration journal, he arrived there without any visible bodily injuries. During the three days of his detention he did not request or receive any medical assistance.
11. On 29 March 2002 the applicant was released.
12. On 15 April 2002 he complained to a traumatologist in the Yevpatoriya hospital that he was suffering from pain in the chest and was prescribed some antibacterial medication.
13. Having repeatedly sought medical assistance for continuous pain, on 22 April 2002 the applicant was diagnosed with post-traumatic intercostal neuralgia and painful hypodermic indurations from both sides of the rib cage. He told the doctor that he had accidentally fallen down some stairs on 13 April 2002.
14. On 25 April 2002 the applicant was hospitalised with the following diagnoses: right-lung pneumonia concentrated in the inferior lobe, fracture of the middle third of the breastbone and closed fracture of the seventh rib on the right side. He underwent treatment as an in-patient until 8 May 2002.
15. On 22 January 2003 the applicant complained to the Yevpatoriya Town Prosecutor's Office (“the Yevpatoriya Prosecutor”) that on 26 March 2002 he had been beaten up by police officer R., as a result of which he had several rib fractures. He explained the delay in bringing that complaint by the alleged agreement with R. (see paragraph 9 above), which he considered to have been breached.
16. On 29 January 2003 the hospital where the applicant had been treated submitted all the related medical documentation (namely the X-ray films, the medical history sheet and other medical records) to the Yevpatoriya Deputy Prosecutor at the latter's request. As it would be later admitted in the course of the investigation, the content of those documents was never reflected in the investigation paperwork.
17. Overall, in the period from January 2003 to December 2007 the Yevpatoriya Prosecutor refused thirteen times to open a criminal case against R. on the basis of the applicant's complaints. All those refusals were subsequently quashed by the Crimea Prosecutor or by the Prosecutor General as unlawful, premature or groundless.
18. The major investigative steps taken and the omissions indicated by the higher-level prosecution authorities were as follows.
19. In January 2003 the Yevpatoriya Prosecutor questioned police officer R. and the investigator dealing with the applicant's own criminal case, who denied the alleged ill-treatment.
20. In October 2003 the ambulance doctors who had provided the applicant with medical aid on account of the cut to his throat on 26 March 2002 were questioned and noted that he had not raised any illtreatment allegations, whereas the cut itself had been an insignificant injury. The therapist who had hospitalised the applicant in April 2002 was also questioned, but could not remember any details.
21. At about the same time it was found out that the medical documentation seized earlier from the hospital was missing.
22. In February 2004 the Crimea Prosecutor criticised his lower-level colleague for not having questioned the applicant and his family members. Among the other omissions he pointed out the failure to conduct a medical forensic examination of the applicant with a view to establishing the nature, date and gravity of the injuries complained of.
23. That criticism was repeated in June, August and November 2004.
24. On 25 November 2004 a forensic medical examination was conducted to clarify which of the applicant's versions concerning the date and origin of his injuries – from the alleged beatings on 26 March 2002 or from the accidental fall on 13 April 2002 – was more plausible. The examination was limited to an analysis of the few medical documents which were available and concluded that both dates were possible for the applicant's injuries at issue, whereas their nature and origin could not be established in the absence of the X-ray films of the material time, as well as the other essential medical documentation (see paragraphs 16 and 21 above).
25. In December 2004 the attested witnesses present at the applicant's arrest on 26 March 2002 stated that they had not witnessed any illtreatment.
26. The applicant's mother, who was questioned in January 2005, stated that after his release on 29 March 2002 the applicant had complained that he had been beaten by the police and of pain in the chest.
27. On 4 January 2005 the Crimea Prosecutor instructed the investigator, inter alia, to find the applicant's medical documentation and to question the inmates with whom he had been sharing a cell in March 2002.
28. In February and April 2005 efforts were taken to find the applicant's cellmates. The whereabouts only of four of them were established. Three inmates did not remember the applicant complaining of ill-treatment or being in need of medical aid, whereas the fourth one mentioned that the applicant had complained to him that he had been beaten by the police without giving any further details.
29. On 21 April 2006 the Crimea Prosecutor criticised the investigator for not having undertaken an inquiry in respect of the loss of the applicant's medical documents. In June 2006 such an inquiry was held, but to no avail. The Yevpatoriya Deputy Prosecutor stated that he had handed the documents to his superior, who had retired in October 2003 and whose current place of residence was unknown.
30. On 22 June 2006 another forensic medical examination was held. It confirmed the conclusions of the earlier one, also referring to the absence of the X-ray films as an impediment to more specific conclusions.
31. In January 2007 the applicant was questioned for the first time in the framework of the investigation of his allegation of ill-treatment. The administration of the prison where he was serving his sentence at the time questioned him at the investigator's request. According to the investigation documents, he stated that he had earlier explained his injuries by an accidental fall because he did not want to bring the police officer to criminal liability, without giving any further details.
32. On 9 January 2007 the applicant was X-rayed, as a result of which a consolidated fracture of one rib was confirmed. The film was lost in the course of 2007.
33. On 4 December 2007 the Crimea Prosecutor noted that the investigation had fallen short of meeting any of its or the Prosecutor General's earlier instructions, given on eleven occasions.
34. On 30 January 2008 the third forensic medical examination was held. This time it was based on a visual examination of the applicant and took place in the prison where he was serving his sentence. As the X-ray films both of April 2002 and of January 2007 remained missing and the Xray machine in the prison was not operational, the expert made a general conclusion that the applicant might have had his rib broken in April 2002. In any event, it appeared impossible to clearly establish the date, nature and origin of his injuries given the considerable lapse of time. The report contained a general observation that, as a rule, establishing the precise time of a fracture was possible only within a year after it had taken place, as later consolidated fractures appear the same.
35. On 31 January 2008 the Yevpatoriya Prosecutor issued the fourteenth and last decision on the refusal to open criminal proceedings against police officer R. on the basis of the applicant's complaints. It noted that all possible investigative measures had been taken, but had failed to yield any substantiation of the applicant's allegations.
36. On 19 May, 18 November 2008 and 3 June 2009 respectively the Yevpatoriya Town Court (“the Yevpatoriya Court”), the Crimea Court of Appeal (“the Court of Appeal”) and the Supreme Court upheld the above ruling. The reasoning of the three courts was confined to a finding that the requirements of Article 99 of the Code of Criminal Procedure had been fulfilled, with no facts established in proof of the applicant's allegation.
37. On 24 July 2002 and 18 March and 23 September 2003 respectively, the Yevpatoriya Court, the Court of Appeal and the Supreme Court found the applicant guilty of possession of illegal drugs and theft and sentenced him to three years and six months' imprisonment.
38. On 25 November 2002 the applicant was arrested (with the reasons for the delay before his arrest being unclear).
39. On 20 May 2003 the Yevpatoriya Court found the applicant guilty of some fifteen counts of theft committed during October and November 2002 and sentenced him to four years' imprisonment. The final sentence under both verdicts – of 24 July 2002 and of 20 May 2003 – was set at six years.
40. The applicant appealed against the charge of the drug offence.
41. On 2 September 2003 the Court of Appeal rejected the appeal as related to another verdict (of 24 July 2002).
42. On 12 May 2005 the Yevpatoriya Court rejected the applicant's request that his mother be allowed to represent him, referring to the fact that both verdicts against him had entered into force.
43. On 22 November 2008 the applicant was released from prison, having served his sentence in full.
44. In December 2008 he was provided with an opportunity to copy the entire case file.
45. On 4 August 2009 he underwent computer tomography, which revealed old fractures of the breastbone and three ribs.
46. Pursuant to Article 99 of the Code of Criminal Procedure, a prosecutor, an investigator, an enquiry body or a court shall refuse to open a criminal case if there are no grounds for deciding otherwise.
47. Other relevant legal provisions can be found in the Spinov v. Ukraine judgment, no. 34331/03, §§ 32-33, 27 November 2008.
VIOLATED_ARTICLES: 3
NON_VIOLATED_ARTICLES: 3


ITEMID: 001-101889
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: AHLSKOG v. FINLAND
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: 1. The applicant, Mr Lars Johan Ahlskog, is a Finnish national who was born in 1929 and lives in Kokkola. He was represented before the Court by Mr Jukka Autio, a lawyer practising in Espoo. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. On 25 October 2000 the bankruptcy estate of Oy Maple House Ab requested the local police to investigate whether the applicant had committed debtor’s dishonesty by using company funds for his own private purposes between 1994 and 1999. The police recorded the criminal complaint and searched the applicant’s premises on the same day in order to find documents needed for the administration of the bankruptcy estate and to deliver them to the liquidator. The head of investigation ordered an interim measure on 23 November 2000 and requested on 29 November 2000 that the District Court issue an injunction in respect of the disposal of the applicant’s property. On 18 December 2000 the District Court ordered that the applicant’s property to a value of 1,100,000 Finnish Marks (some 185,000 euros) be frozen.
4. The applicant was interrogated for the first time on 19 March 2001. The pre-trial investigation ended on 2 August 2001 when the investigation material was forwarded to the prosecutor.
5. The prosecutor received the investigation material on 10 August 2001.
6. The case was referred further to the Office of the Prosecutor General (valtakunnansyyttäjänvirasto, riksåklagarämbetet). It appears from the first State prosecutor’s application of 22 August 2001 for an extension of the time prescribed for bringing charges and from the investigator’s letter that the final statement of the applicant was received as late as 14 August 2001. The prosecutor filed the application for a summons on 13 November 2001.
7. A second State prosecutor was assigned to this case and to another case concerning the applicant in January 2004.
8. The case became pending before the Kokkola District Court (käräjäoikeus, tingsrätten) on 13 November 2001. In December 2001 the District Court requested the complainant to present his claims. In January 2002 the summons was served on the applicant and he filed his response on 27 February 2002.
9. In spring 2002 the applicant started to involve himself in the work of his legal counsel, for example by challenging it, filing submissions with the District Court without informing the (first) counsel and alleging that the latter was guilty of criminal conduct. In spring and summer 2002 the applicant filed more than 200 pages of submissions regarding counsel’s alleged criminal activity and the alleged violation of official duty by the prosecutor.
10. On 20 September 2002 the applicant’s (first) counsel was dismissed, and the District Court started to look for new counsel, but none was appointed because of a lack of candidates. The court tried to solve the counsel problem during spring and summer 2003 and finally on 15 September 2003 appointed new (second) counsel.
11. On 19 September 2002 the applicant’s spouse informed the District Court that the applicant had become very ill and she filed a medical certificate to that effect on 10 October 2002. On 10 March 2003 the applicant filed additional medical certificates with the court. On 11 March 2003 the court requested the applicant to provide further information about the certificates, according to which his medical examination and treatment were still ongoing between March and June 2003.
12. On 9 September 2003 the District Court held a consultation which the applicant also attended.
13. Before ruling on the case, the District Court waited for judgment in another case. The latter case was heard in December 2003 and decided on 6 February 2004.
14. In April 2004 the District Court drew up a timetable for processing the case and sent it to the applicant for information.
15. On 19 May 2004 the court also held an internal consultation.
16. At the preparatory session on 26 August 2004 the District Court found that extensive additional preparation in writing was necessary.
17. During the additional preparation, which lasted the whole of autumn 2004, the applicant requested an extension of the time prescribed for issuing the defendant’s statement. Further, the applicant requested that another pending case be joined to the case. The District Court rejected the latter request.
18. On 20 January 2005 the District Court adopted a procedural decision in view of the procedural motions and claims presented during the preparation in writing. At the same time, the court decided that the proceedings would be continued in respect of one count only. Another count was left to await the judgments of the Supreme Court (korkein oikeus, högsta domstolen) and the European Court of Human Rights (application no. 75619/01).
19. For the count to be processed, the District Court prepared a proposal in February 2005 regarding the main hearing and sent it to the parties for comment. In April 2005 the applicant requested that the main hearing should not be held on the date proposed. On 20 April 2005 the court rejected the request, confirmed the procedure, and decided to hold the main hearing on 15 to 16 and 20 to 22 June 2005.
20. On 15 June 2005 the applicant was brought by the police before the District Court. When arriving in the courtroom he announced that he had an appointment with a doctor and left the court using that excuse. He failed to appear at the main hearing the next day and could not be contacted.
21. On 20 June 2005 the District Court received a medical certificate according to which the applicant was unable to work between 16 and 30 June 2005. The District Court set 11 July 2005 as the new hearing date.
22. During the main hearing on 22 June 2005, a witness testimony pointed to a new fact, which caused the applicant to request an additional investigation.
23. On 5 July 2005 the District Court asked the applicant’s counsel about the possibility of hearing the applicant at his home. The applicant declined, stating that that course of action would be unreasonable.
24. On 11 July 2005 the applicant did not appear at the main hearing. During the hearing, the applicant’s counsel successfully requested interim measures and a new hearing date. The District Court set 4 August 2005 as the new hearing date.
25. On 4 August 2005 the applicant again failed to appear at the hearing. The court then made a consolidated procedural decision concerning the applicant’s repeated absence, holding that he had intentionally evaded the proceedings.
26. On 11 August 2005 the District Court dismissed the charges of aggravated debtor’s dishonesty but imposed a fine on the applicant due to his repeated absence from court. The injunction remained in force.
27. The prosecutor appealed against the judgment of the District Court and presented an alternative description of the alleged criminal act before the Vaasa Court of Appeal (hovioikeus, hovrätten). The applicant also appealed to the Court of Appeal in respect of the fine imposed by the District Court.
28. On 2 March 2006 the Court of Appeal decided to refer the case back to the District Court. The court found that as the prosecutor had provided the court with an alternative description of the criminal act and an alternative victim, new documentary evidence and new witnesses, a new hearing was required. In addition, the court noted on its own initiative that the applicant had not been heard in person before the District Court, even though he risked being sentenced to imprisonment. The fact that the charges were later dismissed was not known at the time of the main hearing and the applicant should therefore have been heard in person. In addition, the precautionary measure was quashed.
29. On an unspecified date the applicant sought leave to appeal to the Supreme Court.
30. The Supreme Court refused leave to appeal on 20 December 2006.
31. The case became pending for the second time before the District Court on 31 January 2007. The case was assigned to a judge who took office on 1 July 2007. The case could not be assigned to another judge as they had all been either processing or had already adjudicated the applicant’s, his son’s or their companies’ cases which all were interconnected in one way or another. The applicant had entered several disqualification pleas and made several procedural and criminal complaints against the judges.
32. The District Court judge responsible for the case had telephone contacts with the applicant and his spouse in summer and early autumn 2007. At that time, a number of other cases concerning the applicant were pending before the District Court. The applicant proposed that his other pending cases should not be heard simultaneously because of his state of health. The judge agreed that the proposal was justified. The court did not start to hear the case immediately but heard another criminal case of the applicant first. When the court passed judgment in the other case on 17 December 2007, the applicant requested that the judgment be supplemented or rectified.
33. In February 2008 a summary of the case was sent to the parties for statements. During March and April 2008 the District Court made efforts to agree on the date of the preparatory session with the prosecutor and counsel of the parties. On 15 April 2008 the parties were summoned to the preparatory session to be held on 17 June 2008. In order to accelerate the preparatory session, the court sent the applicant’s counsel on 13 May 2008 a request to reply and on 10 June 2008 a request to supplement the reply given to the court.
34. During the preparatory session on 17 June 2008, the District Court and the parties discussed the possibility of joining certain cases. It was agreed unanimously that at least two weeks should be reserved for the main hearing.
35. On 4 and 14 November 2008 the District Court decided to extend the time prescribed for the applicant’s submissions.
36. On 12 November 2008 the court decided not to withdraw the assignment of the applicant’s counsel. It appears from the case file that the applicant opposed on occasion withdrawing counsel’s assignment, sometimes himself requesting that the assignment be withdrawn.
37. On 5 December 2008 the District Court decided to join some of the applicant’s cases. On that date the court also rejected the applicant’s request for an expert opinion.
38. On 2 February 2009 the applicant brought charges for violation of official duty against the judge responsible for his case just before the beginning of the main hearing. Moreover, he entered disqualification pleas against nearly all actors in the proceedings just before the start of the main hearing.
39. On 2 February 2009, when the main hearing was to begin, the applicant failed to appear in court. On 3 February 2009 the court ordered that the applicant be brought to the courtroom. The applicant requested that the main hearing be cancelled and challenged the jurisdiction of the court to try his case.
40. On 20 March 2009 the District Court convicted the applicant on five different counts, inter alia, for aggravated debtor’s dishonesty and sentenced him to a conditional term of imprisonment of 1 year and 2 months. The District Court expressly took into account the length of the proceedings when passing sentence.
41. The applicant, invoking the nature and scope of the case, requested that the time for appeal to the Court of Appeal be extended. On 8 April 2009 the District Court agreed to the request and set 30 April 2009 as the new date for the appeal. The date for the counter-appeal was fixed for 14 May 2009.
42. On 14 May 2009 the case became pending before the Court of Appeal.
43. On an unspecified date the Court of Appeal adopted a partial decision concerning the withdrawal of the order appointing the applicant’s counsel. The applicant requested leave to appeal to the Supreme Court against the said decision.
44. On 29 October 2009 the Supreme Court refused the applicant leave to appeal.
45. The proceedings in the Court of Appeal are still pending.
46. According to Chapter 6, section 7, of the Penal Code (rikoslaki, strafflagen; as amended by Act no. 515/2003),
"[i]n addition to what is provided above in Section 6, grounds mitigating the punishment that are also to be taken into consideration are;
[...]
(3) a considerably long period that has passed since the commission of the offence; if the punishment that accords with established practice would for these reason lead to an unreasonable or exceptionally detrimental result."
47. In its judgment of 11 June 2004 (KKO:2004:58) the Supreme Court noted that, although there were no legal provisions justifying the dismissal of a criminal charge due to unreasonably lengthy proceedings, such a dismissal or declaring a case inadmissible might in some exceptional circumstances, for example if their duration ruled out a good defence, be the only effective remedy satisfying the requirements of Article 13 of the Convention. That was, however, not the case in that precedent case. In considering whether there were grounds for applying Chapter 6, section 7, subsection 3, of the Penal Code, the Supreme Court held that it had to be decided in casu whether the duration of the proceedings (in the precedent case over 5 and a half years) had been unreasonable. It concluded that in this case there were no grounds to waive a sentence or to mitigate the sentence owing to the duration of the proceedings.
48. In its judgment of 15 June 2005 (KKO:2005:73), the Supreme Court, applying Chapter 6, section 7, subsection 3, of the Penal Code, reduced the sentence imposed upon the applicant by six months owing to the length of the proceedings that had lasted some ten years. The court imposed an immediate term of ten months’ imprisonment, finding that it was not justifiable to mitigate the sentence further by suspending the term of imprisonment.
49. A new Chapter 19 has been added to the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken; as amended by Act no. 363/2009) which entered into force on 1 January 2010. This Chapter provides for a possibility to accelerate pending proceedings if there are specific reasons for so doing, inter aliaAny application for acceleration must be addressed to the District Court before which the case is pending and shall be examined by a single judge formation. A case which has been granted priority must be examined by the District Court without delay and before any other cases. The decision to grant or refuse priority cannot be separately appealed.
50. The Act on Compensation for Excessive Duration of Judicial Proceedings (laki oikeudenkäynnin viivästymisen hyvittämisestä, lagen om gottgörelse för dröjsmål vid rättegång; Act no. 362/2009) entered into force on 1 January 2010. The Act provides for a party a right to receive compensation from State funds whenever judicial proceedings concerning that party have been excessively long.
51. As to its scope of application, section 2 of the Act provides as follows:
“This Act is applicable by general courts to litigious, non-contentious and criminal actions.
Reduction of a penal sanction on the basis of excessive length of judicial proceedings is provided for in the Penal Code (39/1889). Irrespective of this Act, compensation for damage caused by excessive duration of judicial proceedings can be obtained as provided in the Tort Liability Act (412/1974).”
52. The right to compensation is set out in section 3 of the Act which provides the following:
“A private party is entitled to receive a reasonable amount of compensation as referred to in section 6 from the State funds if judicial proceedings last an excessively long time resulting in a violation of the party’s right to a trial within a reasonable time.”
53. When evaluating the length of the proceedings, in addition to the length itself, the nature and scope of the subject-matter, the actions of the parties, authorities and courts in respect of the proceedings as well as the importance of the subject-matter to a party are to be taken into consideration pursuant to section 4 of the Act. Moreover, the case-law under Article 6 § 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms of the European Court of Human Rights of the Council of Europe is also to be taken into account.
54. According to section 5 of the Act, the period to be taken into account starts in civil and non-contentious civil matters when action is initiated before a court; in criminal matters when the competent authority has notified the defendant of a crime suspected to have been committed by him or when a crime suspicion directed at him has had an essential bearing on his position; or when a claim made by a party has become pending before a court.
55. As to the amount of compensation, section 6 of the Act provides the following:
“The purpose of compensation is to compensate for the anxiety, uncertainty or other comparable harm caused to a party by excessive duration of proceedings.
The amount of compensation is 1,500 euros per year for each year that the proceedings have been delayed for reasons attributable to the State. The total amount of compensation shall be increased by a maximum of 2,000 euros if the merits are particularly important to the party. A matter shall be considered particularly important if it has a direct bearing on the person’s health, income, legal position or some other comparable consideration. The compensation may be reduced or increased on the basis of a consideration referred to section 4 or for some other comparable consideration.
The compensation amount shall not exceed 10,000 euros. This maximum amount of compensation may be exceeded in special circumstances.
There is no entitlement to monetary compensation as far as a sanction imposed has been mitigated due to the excessive duration of proceedings. If compensation has been awarded earlier by a final decision in the same matter, it shall be taken into account as a reduction when determining the new compensation.”
56. As to the procedure for claiming compensation, section 7 of the Act provides as follows:
“A claim for compensation shall be lodged with the general court in charge of the case before the consideration of the merits is closed under the pain of loss of the right of action. Such a claim cannot be lodged as late as at the Supreme Court stage without a valid reason.
A claim may be made in writing or orally. Justifications for the claim shall be presented.”
57. According to section 8 of the Act, the public prosecutor shall use in criminal matters the right of action on behalf of the State in respect of a compensation matter while the Ministry of Justice shall use it in respect of other matters. The Ministry of Justice shall not be provided with an opportunity to be heard in respect of the compensation claim unless there is a special reason for this.
58. As to the decision-making, section 9 of the Act provides that the court shall decide on the compensation claim when it decides on the merits of a case. The composition competent for deciding on the merits shall also be competent for deciding on the issue of compensation. The court must notify the Ministry of Justice of the decision on compensation without delay.
59. Section 10 of the Act concerns costs. It provides as follows:
“If a party is awarded compensation, reimbursement of the necessary and reasonable costs incurred by him for claiming compensation shall be ordered to be paid to him from State funds unless otherwise reimbursed from State funds. No fee is charged for the processing of the compensation claim.”
60. According to section 11 of the Act, a decision rendered by a court on the compensation claim can be appealed against in the same manner as the decision on the merits. The Ministry of Justice can appeal against the District Court decision without having to register its intent to appeal.
61. As concerns the payment of compensation, section 12 of the Act provides that the compensation shall be paid to a party within a month of the date on which the compensation decision became final. The compensation shall be paid by the Ministry of Justice. A prohibition on attaching the compensation and its tax-fee nature is provided for by a separate provision.
62. The Act has already been applied by the domestic courts. On 1 February 2010 the Pirkanmaa District Court rejected a compensation complaint as the length of the proceedings had not been excessive (one year and ten months at one level of jurisdiction). In its judgment of 8 March 2010 the Vantaa District Court rejected a compensation complaint as it had been filed too late. On 1 March 2010 the Turku Court of Appeal found in a case that proceedings had been too lengthy when they had lasted six years and four months at two levels of jurisdiction, and awarded the applicants 1,500 and 2,000 euros respectively.


ITEMID: 001-119040
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: COMMITTEE
DATE: 2013
DOCNAME: CASE OF SAKHAROVA v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court)
JUDGES: Elisabeth Steiner;Linos-Alexandre Sicilianos;Ksenija Turković
TEXT: 7. The applicant was born in 1952 and lives in Novocherkassk, the Rostov Region.
8. She is a widow of a military officer. She sued the military commissariats of Novocherkassk and the Rostov Region for recalculation of her pension on account of the increase of the monetary compensation paid in respect of a food allowance.
9. On 18 August 2004 the Justice of the Peace of the 6th Court Circuit of Novocherkassk granted her claim and ordered the military commissariat of the Rostov Region to pay the applicant 17,216.06 Russian roubles (RUB) in pension arrears, as well as to readjust future payments in line with the increase of the food allowance. The claim against the commissariat of Novocherkassk was dismissed.
10. The judgment was not appealed against and entered into force. It has not been executed.
11. According to the Government, at some point the military prosecutor’s office started an inquiry into lawfulness of several sets of court proceedings concerning military pension arrears throughout the Rostov region.
12. On 14 October 2004 the defendant lodged a request for supervisory review of the case.
13. On 13 January 2005 the Presidium of the Rostov Regional Court quashed the judgment on the ground of a violation of substantive law and remitted the case to the President of the Novocherkassk Town Court for the transfer to a different court for a fresh examination. The Presidium found, in particular, that the Justice of the Peace incorrectly calculated the amount of the food allowance, having thus misinterpreted the material law.
14. On 28 April 2005 the Justice of the Peace of the 5th Court Circuit of Novocherkassk discontinued the proceedings on the ground of the applicant’s repeated failure to appear. The applicant did not appeal against the decision, and it entered into force.
15. According to the Government, at some point several unspecified military officials of the Rostov Region had been charged with and convicted of negligent attitude to duties which had caused damage to the State (Article 293 of the Criminal Code of the Russian Federation). The Government did not provide any documents or further details in this respect.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-23121
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: KRONE VERLAG GmbH & CoKG and MEDIAPRINT ZEITUNGS- UND ZEITSCHRIFTENVERLAG GmbH & CoKG v. AUSTRIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicants, Krone Verlag GmbH & CoKG and Mediaprint Zeitungs- und Zeitschriftenverlag GmbH & CoKG are the owner and publisher, respectively, of the daily newspaper “Neue Kronen Zeitung” with its seat in Vienna.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 8 January 1997 the Neue Kronen Zeitung published an article, written under the pseudonym “Cato”, about the exhibition “War of annihilation. Crimes of the Wehrmacht 1941-1944” (“Wehrmachtsausstellung”), planned to be staged in Salzburg and contested in Austrian public opinion. The article responded to a commentary by a professor of the Institute of History of the University Salzburg, published on 23 December 1996 in the opinion column of the newspaper Salzburger Nachrichten, where the author had defended and promoted this exhibition and had criticised its opponents. The article of the Neue Kronen Zeitung with the head “Infected with lies...” (“Mit der Lüge infiziert...”) read as follows:
“Contemporary history is infected with lies as a whore is with syphilis.” Who said that? You probably won’t guess: the great philosopher Schopenhauer. How right he is! And naturally the losers in a war are the first to suffer.
This is evident at the so-called Wehrmacht Exhibition, in which most of the exhibits come from the Soviets, in other words from the Stalinist regime that – among numerous other crimes against its own people and other nations – committed the massacre at Katyn and attempted to lay the blame for it on the Wehrmacht. Well over 10,000 Poles were shot dead because they were regarded as anti-Communists. In a show trial sixteen German soldiers were sentenced to death and immediately executed, though they were completely innocent. Today documents exist which prove this beyond dispute.
A Salzburg professor of contemporary history, Gerhard Botz – a Waldheim persecutor, of course, who lives on taxpayers’ money and is highly subsidised – praises this exhibition and attacks anyone who expresses any reservations. And who is helping him? The Salzburger Nachrichten, which gives him a whole page.
Isn’t there a saying “If you are caught lying once, you are never believed...”? Well, anyone who has once lied so grossly, who has been guilty of such criminal falsification and who – to make the monstrous lie more credible – has sacrificed human lives deserves our utter contempt. What can have happened to this once so distinguished newspaper for it to side with the Katyn murderers and not believe former soldiers who experienced the suffering of war?
Does the Salzburger Nachrichten believe that the fallen whose names appear on the war memorials of our cities, towns and villages were murderers? What an outrageous slur, on them and on those who managed to survive the hecatomb!
Maybe those who smear our Second World War soldiers think that those who can still defend their wartime comrades and themselves are now only few in number anyway and that their numbers are declining. But sons, daughters and grandchildren will begin to feel the pain of their fathers’ scars. They won’t allow soldiers whose unavoidable destiny it was to fight a world war to be called murderers.
The process of rehabilitation has perhaps already begun. One symptom among many: the falling circulation of newspapers that act as accomplices of ‘contemporary historians’ as characterised by Schopenhauer.
Cato”
Subsequently, the owner of the Salzburger Nachrichten filed a private prosecution against Mr Dichand, the editor of the Neue Kronen Zeitung, assuming him to be the author of the article written under the pseudonym “Cato”, on grounds of defamation (üble Nachrede) and insult (Beleidigung). At the same time the owner of the Salzburger Nachrichten requested compensation under the Media Act (Mediengesetz) and that the decision be published.
On 10 June 1997 the Vienna Regional Criminal Court (Landesgericht für Strafsachen) acquitted Mr Dichand and rejected the further claims. It found that it could not be established with sufficient certainty that the impugned article was written by the accused. Referring to this acquittal, the court also rejected the compensation claim and the request for publication of the judgment. It noted that the article in the Neue Kronen Zeitung was part of a political debate in the course of a journalistic controversy about the exhibition and the historical role of the Wehrmacht. Its value statements were based on true facts and did not overstep the limits of permissible criticism. This decision became final.
Parallel to these proceedings, the owner of the Salzburger Nachrichten lodged injunction proceedings under section 1330 of the Civil Code (ABGB) and under the Unfair Competition Act (Gesetz gegen den unlauteren Wettbewerb) against Mr Dichand and the applicant companies before the Salzburg Regional Court (Landesgericht), requesting that the applicant companies be prohibited from repeating the following statements:
a) that the Salzburger Nachrichten approved the massacre at Katyn committed by the Soviets in the Second World War;
b) that in its reporting it called murderers those fallen in the Second World War;
c) that it smeared the soldiers of the Second World War;
d) that it had diminished in quality as a newspaper;
e) that its circulation had fallen; and
f) that the Salzburger Nachrichten were accomplices of liars (meaning that contemporary historians would falsify history). It also requested a revocation of these allegations and that the decision be published.
On 29 August 1997 the Salzburg Regional Court issued an injunction, by which it prohibited the applicant companies to repeat the impugned statements and ordered its publication. It noted in particular that the statements a), b) and d) constituted untrue statements of facts which fulfilled the civil offences under section 1330 § 2 of the Civil Code and under section 7 of the Unfair Competition Act. The statements c) and f) were value statements containing an unobjective and unnecessary disparagement of a competitor under section 1 of the Unfair Competition Act. Finally, the statement e) was based on true facts, which, taken in its context, fulfilled the civil offence under section 1 of the Unfair Competition Act. The court stated that the article at issue dealt with a political and ideological matter of public interest. In this respect, the criticism lodged against the Salzburger Nachrichten could be understood as criticism for having given a forum in its opinion column to an author who had disputable opinions. It had to be taken into account that commentaries in opinion columns were not necessarily in line with a newspaper’s point of view. Since the Neue Kronen Zeitung also criticised the general quality of the Salzburger Nachrichten and its circulation, which had no relevance whatsoever for the political topic at issue, the criticism lodged in the article had to be considered as having been made by the applicant companies with a competitive intention. The same applied to disparaging and untrue statements. Furthermore, in balancing the purely political statements, which aimed at contributing to a journalistic debate, with those, which were made with a competitive aim, the latter prevailed in the court’s opinion, in particular since the article ended with a disparaging statement.
On 22 December 1997 the Linz Court of Appeal (Oberlandesgericht), on the applicant companies’ appeal, confirmed the lower court’s decision in part. It rejected the claim against Mr Dichand and ordered the applicant companies to refrain from publishing the following allegations:
“a) that, in its reports on the Wehrmacht Exhibition, the Salzburger Nachrichten would side with the Katyn murderers and thus approve the massacre of 10,000 Poles at Katyn committed by the Soviet Army;
b) that in its reports the Salzburger Nachrichten would call the fallen soldiers of the Second World War ‘murderers’;
c) that in its reports the Salzburger Nachrichten would smear the soldiers of the Second World War;
d) that the Salzburger Nachrichten would not report in the same quality as in the past and had thus lost in quality as a newspaper, and
e) that the Salzburger Nachrichten were accomplices of liars.”
The court found that a controversy between newspapers could contribute to form public opinion. This function would become less important if such controversy was conducted with a competitive intention and by the use of untrue and disparaging statements of facts. Since this was so in the present case, the competitor’s interest in the protection of its reputation outweighed the applicant companies’ right to freedom of expression. The court quashed the lower court’s injunction as regards the prohibition to repeat that the circulation of the Salzburger Nachrichten had fallen, finding that it constituted a true statement of fact.
On 21 April 1998 the Supreme Court (Oberster Gerichtshof) dismissed the applicant companies’ extraordinary appeal on points of law as it did not raise any important issue of law and because the Court of Appeal’s judgment was in line with the Supreme Court’s case-law. It noted in particular that the criteria of section 7 of the Unfair Competition Act were fulfilled when statements of facts were published, inter alia, with a competitive intention. In this respect, the competitive intention had to be assumed when disparaging allegations about a competitor were made. A given statement constituted a statement of fact if its meaning, as understood by the recipient, was based on facts which were susceptible to proof.
Section 1330 of the Austrian Civil Code provides as follows:
"(1) Anybody who, due to defamation, suffered real damage or loss of profit, may claim compensation.
(2) The same applies if anyone is disseminating facts which jeopardise someone’s reputation, gains or livelihood, the untruth of which was known or must have been known to him. In this case there is also a right to claim a revocation and the publication thereof. (...)"
The relevant sections of the Unfair Competition Act read as follows:
Section 1
"Any person who in the course of business commits, for the purposes of competition, acts contrary to honest practices, may be enjoined from further engaging in those acts and held liable for damages."

Section 7
“(1) Any person who, for the purposes of competition, makes or propagates declarations of fact about another person’s company, about the owner or manager of a company, about the goods or services of another person, that are such as to damage the activities of the company or the credit of its owner, may be held liable for damages, if the truth of the declarations cannot be proved. The person damaged may also apply for an injunction against the making or propagation of such declarations and may claim a revocation and the publication thereof.”