Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The applicant, Ms Gesine Mielke, is a German national who was born in 1958 and lives in Hamburg.

In 1940 the applicant’s predecessor (“the predecessor”) acquired a plot of land with a five-storey building situated in the centre of Berlin (“the property”), later in East Berlin, on the territory of the German Democratic Republic (GDR).

From 1963 onwards, the property was subjected to public administration by the GDR authorities but was not formally transferred into public property.

The predecessor died in 1973 in West Berlin, in the Federal Republic of Germany (FRG); the land register was not rectified. In 1994 and 1996 his heir (“the heir”) relinquished her rights as regards restitution of the property to the applicant before a notary public.

On 8 August 1989 the East Berlin City Council (Magistrat von Ostberlin) allowed the refurbishment of the building subject to expropriation of the property from its owner.

On 14 September 1989 the State Planning Commission of the GDR cabinet (Ministerrat der DDR) approved the refurbishment plans.

On 20 September 1989 the Central Office responsible for the International Trade in Licences requested that the property be expropriated; the compensation was set at 111,800 marks.

On 25 January 1990 the Inner Berlin Borough Council (Rat des Stadtbezirks Mitte) expropriated the property from its owner with effect from 1 March 1990 and transferred the property to the Ministry of Foreign Trade. The undated decision to expropriate the property was signed and sealed. The applicant contested that the expropriation had taken place on that date.

On 9 March 1990 the Ministry of Foreign Trade sold the building built on the property to a public holding (“the holding”) for 245,443.60 marks. On 13 March 1990 the ownership of the property was transferred to the holding. The holding had been founded on 26 January 1990 and had been registered in the register of public enterprises (Register der volkseigenen Wirtschaft) on 9 February 1990. On 28 June 1990 the holding requested to be registered as a limited company in the course of incorporation; the company was dissolved with effect from 31 December 1992.

The Court has summarised the political background to the dissolution of the GDR in the case of Streletz, Kessler and Krenz v. Germany ([GC], nos. 34044/96, 35532/97 and 44801/98, § 17, ECHR 2001II) as follows:

“In autumn 1989 the flight of thousands of citizens of the GDR to the FRG’s embassies in Prague and Warsaw, and to Hungary, which had opened its border with Austria on 11 September 1989, demonstrations by tens of thousands of people in the streets of Dresden, Leipzig, East Berlin and other cities, and the restructuring and openness campaign conducted in the Soviet Union by Mikhail Gorbachev (perestroika and glasnost) precipitated the fall of the Berlin Wall on 9 November 1989, the collapse of the system in the GDR and the process that was to lead to the reunification of Germany on 3 October 1990.”

On 18 October 1989 the Secretary-General of the Socialist Unity Party’s Central Committee, Mr E. Honecker, stepped down and was replaced by Mr E. Krenz. Especially after the fall of the Berlin Wall on 9 November 1989 the GDR was in an ever-increasing state of dissolution.

On 26 January 1990 the Under-Secretary of State in the GDR’s Ministry of Finance and Prices wrote to the First Deputies to the Borough Councils and admonished them to comply with the rules of regulations governing expropriations from owners living outside the GDR, namely, that the latter should be kept correctly informed of and allowed to participate in proceedings concerning their property. On 3 October 1990, the date of the German reunification, the Convention entered into force on the territory of the new Länder.

On 20 September 1990 the heir applied for rights under the Act on the Regulation of Outstanding Property Issues/ Property Act (Gesetz zur Regelung offener Vermögensfragen/ Vermögensgesetz – hereinafter the “Property Act”, see “Relevant domestic law and practice” below). On 4 September 1992 the Office for the Resolution of Outstanding Property Issues ordered that the public administration of the property be lifted.

On 22 December 1992 the property rights were administratively allocated to the holding pursuant to the Act on the Allocation of Former Public Property (see “Relevant domestic law and practice” below); this decision became final on 16 December 1994 after the Berlin Administrative Court had dismissed the heir’s claim.

On 21 January 1993 the heir was listed as owner in the land register on the basis of the heir’s certificate. The registration had no effect on the ongoing proceedings.

On 11 January 1994 the order that the public administration be lifted was revoked following an administrative appeal by the holding in dissolution; on 5 September 1996 the Federal Administrative Court upheld the decision.

On 4 December 1995 the property was administratively allocated to the Fiduciary Office’s property holding (Treuhandliegenschaftsgesellschaft) as successor to the holding.

On 14 February 1996 the holding in dissolution was registered as its owner in the land register.

On 29 December 1992 the Berlin Mitte District Court granted the holding’s request for an interim objection to the predecessor’s listing as owner of the property in the land register.

On 5 November 1993 the Berlin Court of Appeal, 15th Civil Senate, quashed the decision of the District Court and refused the request on the ground that the holding had not established that it had become the owner of the property. The Court of Appeal noted that the expropriation by the GDR authorities had clearly been carried out in complete administrative disarray, likely caused by the then imminent German reunification. The decision to expropriate the property from the predecessor had been undated, the form had not been properly filled out and the note that the decision had become final had not been in conformity with standard practice. The expropriation procedure had furthermore violated theprovisions for the basic legal protection of property owners under GDR law, for the GDR authorities had not contacted the heir, as the owner, and had not ascertained whether the predecessor had died, although this would have been possible after the fall of the Berlin Wall. The Court of Appeal concluded that the GDR authorities had deliberately excluded the heir from the proceedings in order to finalise the expropriation before the German reunification on 3 October 1990.

On 30 November 1994 the holding handed the property over to the heir without prejudice to the ownership of the property.

The heir then requested in the main proceedings that she be declared theowner of the property. The holding brought a counter-claim for it to be declared the owner. The Berlin Regional Court dismissed the heir’s request and granted the counter-claim on the grounds that the holding had become the owner by virtue of the decision that had administratively assigned the property to it and which had become final on 16 December 1994 (see above).

On 21 February 1997 the Berlin Court of Appeal, 21st civil senate, dismissed the heir’s appeal and ordered her to return the property in exchange for the return of a bond of 1.3 million German marks she had deposited with the respondent. The Court of Appeal held that the expropriation by the GDR authorities had been lawful. In particular, the public administrator had been informed of the expropriation.

On 29 January 1998 the Federal Court of Justice dismissed the heir’s appeal on points of law.

On 11 June 1998 the Office for the Resolution of Outstanding Property Issues ordered that the property be returned to the applicant against the payment of compensation on the grounds that the applicant’s predecessor had suffered a property loss within the meaning of section 1(1) (b) of the Property Act (see “Relevant domestic law and practice” below).

On 10 April 2000 the Office for the Resolution of Outstanding Property Issues dismissed the Fiduciary Office’s administrative appeal.

On 15 December 2005 the Berlin Administrative Court set aside the restitution order on the grounds that the heir had not been entitled to restitution of the property. The property had not been expropriated without compensation (section 1(1) (a) of the Property Act (see “Relevant domestic law and practice” below)) because in principle the owner could have been compensated under the laws and the state practice of the GDR. Furthermore, the property had not been expropriated for less compensation than citizens of the GDR would have been entitled to (section 1(1) (b) of the Property Act (see “Relevant domestic law and practice” below)). According to the caselaw of the Federal Administrative Court this provision was only applicable to expropriations for which the former owner had deliberately been granted less than a citizen of the GDR would have had; following the entering into force of the decree on prices no. 3/87 in 1987, which had been applicable in the present case, owners living in West Germany were no longer systematically discriminated against in calculating the compensation due. Lastly, the property had not been taken by unfair means (section (1)(3) of the Property Act (see “Relevant domestic law and practice” below)); in particular, expressly relying on the case-law of the Federal Administrative Court, the Berlin Administrative Court held that the property had not been taken for a purpose other than the one stated, that its transfer into public property before transferring it to the holding had not been unfair, that the fact that the owner that was listed in the land register had already died had no bearing on the fairness of the expropriation proceedings, and that the property had been expropriated before 26 January 1990. As regards the Berlin Administrative Court observed that the GDR authorities had been of the opinion that the owner of the property did not have to be informed about the expropriation according to the GDR law as practised by its authorities, since the property had been subjected to public administration.

On 21 September 2006 the Federal Administrative Court refused leave to appeal on points of law and noted, inter alia, that it was not decisive that the Federal Court of Justice had previously held that the deliberate exclusion of the owner living in the FRG from the expropriation proceedings by the GDR authorities after 18 November 1989 had resulted in the expropriation being void. The Federal Administrative Court noted that any difference in opinion between the two federal courts had no bearing on the applicant’s case because the Berlin Administrative Court had conclusively established that the GDR authorities had been of the opinion that they had not needed to inform the owner of the expropriation proceedings; the GDR authorities had accordingly not deliberately excluded the owner from them.

On 14 February 2007 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint for adjudication (no. 1 BvR 2899/06).

Pursuant to Article 19 of the Treaty between the Federal Republic of Germany and the German Democratic Republic concerning the German Reunification - Reunification Treaty (Vertrag zwischen der Bundesrepublik Deutschland und der Deutschen Demokratischen Republik über die Herstellung der Einheit Deutschlands – Einigungsvertrag), administrative acts by the authorities of the GDR prior to reunification remain in force. Such acts may be repealed if they are incompatible with the principles of the rule of law or the Reunification Treaty.

A former owner may request restitution of property (section 3 of the Property Act) that was expropriated in the GDR if the property was expropriated without compensation (section 1(1) (a) of the Property Act), with less compensation than a GDR citizen would have been entitled to (section 1(1) (b) of the Property Act), if the state administrator sold the property or if the nationalised property was sold to third persons (section 1(1) (c) of the Property Act), or if the property was taken by unfair means, such as the misuse of power, corruption, coercion or deceit (section (1)(3) of the Property Act).

According to this provision, the validity of expropriations that lead to the transfer of property into public property shall be determined in view of the law in force at the time of the expropriation. Expropriations are invalid if the property could not have been transferred into public property or if the transfer was plainly irreconcilable with the rule of law (mit rechtsstaatlichen Grundsätzen schlechthin unvereinbar) because of serious violations of the rule of law or of the principle of proportionality or because the expropriation had been arbitrary.

The relevant authority may decide to allocate former public property following a procedure in which all interested parties have had the right to participate. Property rights of third persons such as ownership and specifically named rights of interested parties are not affected by this decision (section 2(1) of the Act on the Allocation of Former Public Property – Gesetz über die Feststellung der Zuordnung von ehemals volkseigenem Vermögen).

In a judgment of 28 April 1999 (no. 8 C 5/98, published in BVerwGE, vol. 109, p. 81 et seq.), the Federal Administrative Court held that expropriations by the GDR authorities in flagrant violation of the pertinent provisions of the GDR law amounted to a taking by unfair means (section (1)(3) of the Property Act) if the expropriation took place after 26 January 1990, the date of the letter of the Under-Secretary of State in the GDR’s Ministry of Finance and Prices to the First Deputies to the Borough Councils.

In a judgment of 12 December 2001 (no. 8 C 10/01), the Federal Administrative Court held that the assessment whether the GDR authorities expropriated using unfair means within the meaning of section 1(3) of the Property Act was to be conducted on a case by case basis if the expropriation took place between 18 October 1989 – the date Mr Honecker stepped down – and 26 January 1990, the date of the aforementioned letter of the Under-Secretary of State in the GDR’s Ministry of Finance and Prices. Only after 26 January 1990 the GDR administrative practice could be assumed to comply with the relevant procedural requirements of GDR law, and thus flagrant procedural shortcomings could result in a taking using unfair means.

In a judgment of 12 May 2000 (no. V ZR 47/99) the Federal Court of Justice held that as a general rule, expropriations by the GDR authorities after 18 October 1989 had used unfair means within the meaning of section 1(3) of the Property Act if the owner living in the FRG had been deliberately excluded from the expropriation proceedings; in such a case the owner had not lost the property and was entitled to be registered as owner in the land register.

In a judgment of 25 July 2003 (no. V ZR 362/02) the Federal Court of Justice held that an owner could pursue a claim to be reinstated as owner in the land register if the GDR authorities’ expropriation order had not become effective, regardless of whether the taking had been accomplished by using unfair means within the meaning of section 1(3) of the Property Act. The Federal Court of Justice noted that it did not depart from the jurisprudence of the Federal Administrative Court in a decisive manner and therefore did not need to refer the question as to the date on which expropriations by the GDR authorities became plainly irreconcilable with the rule of law.

Pursuant to Article 95(3) of the Basic Law a Common Senate (Gemeinsamer Senat der obersten Gerichtshöfe) of the Federal Court of Justice, the Federal Administrative Court, the Federal Social Court, the Federal Labour Court and the Federal Tax Court shall be established to preserve the uniformity of decisions. The Common Senate decides the legal question that is disputed between senates of different federal courts if they cannot agree on a common interpretation following a procedure laid down in the Act on the Preservation of the Unity of the Federal Courts’ Jurisprudence (Gesetz zur Wahrung der Einheitlichkeit der Rechtsprechung der oberten Gerichtshöfe des Bundes). Proceedings before the Common Senate with regard to an individual appeal on points of law pending before a federal court are interlocutory.


Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of P1-1

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens

The applicant was born in 1948 and lives in Krasnodar.

On 15 April 1994 the applicant deposited 3,330 new roubles (“roubles”) in a savings account with the commercial bank Yurak (“the bank”) offering an interest rate of 200% per annum. Between April and July 1994 he withdraw 555 roubles, representing interest that had accrued on that account. After the bank announced that it was changing the interest rate, the applicant requested the closure of his account in August 1994, but the bank informed him that it was unable to repay him his capital plus interest as its funds were insufficient.

The applicant brought proceedings against the bank, seeking repayment of the capital he had deposited, together with interest, a penalty payment at 3% per day and compensation for pecuniary damage (in connection with the construction of a house) and for non-pecuniary damage (on account of health problems).

On 20 February 1995 the Oktyabrskiy District Court of the town of Krasnodar partly upheld his claims. It established that on the closure of his account the bank owed the applicant 3,607 roubles, representing the capital deposited and the interest due for August 1994. After calculating the index-linked sum, it ordered the bank to pay the applicant 6,276 roubles. It further ordered a penalty payment of 3,330 roubles and awarded 500 roubles for non-pecuniary damage, making a total of 10,156 roubles.

That decision was upheld at last instance on 21 March 1995.

In a decision of the Oktyabrskiy court of 5 April 1996, the above-mentioned judgment debt was raised to 17,983 roubles in view of the failure to pay the 10,156 roubles and the rate of inflation.

In the meantime, on 16 June 1995, at the request of the Central Bank and the Russian Savings Bank, the Commercial Court for the Krasnodar region declared the bank insolvent.

On 19 July 1995 the insolvency procedure was opened by that court and a liquidator was appointed to oversee the liquidation.

On 11 January 1996 the Commercial Court approved the provisional statement of affairs based on the bank’s financial situation at 28 December 1995.

On the basis of that statement the committee of creditors of the bank decided on 18 January and 13 March 1996 to distribute the assets in the first place to certain categories of creditors. Accordingly, disabled persons, Second World War veterans, individuals in need and persons having taken an active part in the liquidation process, that is to say 700 persons in total (about 10% of creditors), were reimbursed by the liquidator at 100% of the index-linked amount of their capital together with interest. It was decided to reimburse the other creditors in the same manner, as and when further assets became available.

The applicant sent the liquidator a request for the repayment of the 17,983 roubles owed to him. In response to that request, the sum of 140 roubles was paid to him on 6 April 1998.

On 22 April 1998 the applicant challenged, before the Commercial Court, the fact that other creditors had received repayment at 100%, whereas he, as a preferential creditor, had received only 140 roubles. Relying on sections 15 and 30 of the Corporate Insolvency Act 1992 (“the 1992 Act”), he sought the repayment of the remainder of the sum owed to him in accordance with the principle of proportional distribution. Section 30 of the Act provided that, where a company’s assets were insufficient to satisfy all creditors, creditors of the same class would be paid in proportion to their respective claims. In the present case, at the date of the applicant’s request, 2,305,000 roubles had been collected in the liquidation process and these funds had been used for 100% repayment to creditors in the various categories mentioned above (see paragraph 16 above).

On 6 July 1998 the applicant’s action was dismissed at first instance on the ground that the amount owed to him (17,983 roubles) represented 0.78% of the assets totalling 2,305,000 roubles which, having been collected in the liquidation process, had been used to repay certain categories of creditor. According to the principle of proportional distribution he was therefore entitled to receive only 0.78% of 17,983 roubles, i.e. 140 roubles. That sum had already been paid to him on 6 April 1998, whilst the remainder would be paid as and when more funds became available in the course of the ongoing liquidation process.

Hearing the case on appeal, the Regional Commercial Court held on 26 August 1998 that, contrary to the requirements of section 27 of the 1992 Act, the liquidator’s list of creditors had not identified those that had priority or the corresponding sums to be paid to them separately. On the basis of the documents produced by the liquidator it was not possible to establish the applicant’s level of priority in relation to the other creditors, and the liquidator himself had stated orally that the applicant belonged to the fifth level of priority. The Regional Court took the view that, in deciding to repay certain categories of creditors at 100%, the creditors’ committee had overstepped the limits of its remit under section 23 of the 1992 Act. By enforcing that decision and distributing the assets accordingly, the liquidator had, in turn, disregarded the requirements of sections 15 and 30 of the Act. Pointing out that section 30 of the Act was not open to a broad interpretation of its provisions, the Regional Court ordered the liquidator to redress the violations thus observed within one month and to inform it of the measures taken in that connection.

The liquidator appealed on points of law to the Federal Commercial Court for the North Caucasus, arguing that he had distributed the assets pursuant to a decision of the creditors’ committee, that the distribution had complied with Article 64 of the Civil Code and that it had not therefore been in breach of the requirements of section 30 of the 1992 Act (see paragraphs 33 and 34 below). On 12 November 1998 his appeal on points of law was dismissed. Upholding the decision of 26 August 1998, the court stated that the liquidator should not have enforced a decision by the creditors’ committee that was in breach of the law.

The enforcement of the decision of 26 August 1998 and, in particular, the redressing of the applicant’s financial situation, were not possible on account of the lack of assets.

In view of the failure to enforce the decision of 26 August 1998, the applicant filed a complaint with the Commercial Court on 2 September 1998, subsequently supplementing it with a complaint of 27 January 1999. He requested that the liquidator in person repay him the index-linked amount of the remainder of his award of 17,983 roubles, with interest and compensation for the non-pecuniary damage caused by his unlawful action.

The complaints in question were examined in the context of the insolvency procedure opened against the bank.

On 4 February 1999 the Regional Commercial Court rejected the applicant’s request on the ground that, on 20 February 1995 and 5 April 1996, the Oktyabrskiy District Court had awarded the applicant the sum of 17,983 roubles to cover his claim and damages, and that it was not possible to rule on the same request a second time. The Regional Court established that the applicant appeared in the list of creditors under the number 519 and that, in respect of the actual capital deposited, the bank owed him a residual amount of 8,813 roubles. The court pointed out that this sum could be paid to him under the conditions laid down in Article 64 of the Civil Code.

On 31 March 1999 judges of the Regional Commercial Court, hearing the case on appeal, upheld the decision of 4 February 1999 and pointed out that, in accordance with an Act of 1998 that was in force at the time the applicant’s complaints were examined, only those debts that had accrued in the course of the bank’s operations could give rise to repayment. Accordingly, the requests for the payment of various sums to which the applicant was allegedly entitled after the bank’s insolvency and during its liquidation could not be granted. The appellate court found that, by virtue of the judicial decisions, the applicant had secured a judgment debt of 17,983 roubles, which corresponded to the damage caused to him by the bank before it became insolvent. It added that the applicant would be able to recover this sum once sufficient assets had been realised in the liquidation process. The applicant’s complaint was confined, in the appellate court’s view, to the seeking of the above-mentioned sum together with penalties for non-payment.

On 9 June 1999 the Federal Commercial Court for the North Caucasus dismissed the applicant’s appeal on points of law on the following grounds:

“The decision of the creditors’ committee and the liquidator’s action concerning the 100% repayment of debts to only 700 creditors (out of the bank’s 7,567 creditors, whose claims amounted to 24,875,000 roubles) admittedly breached the principle of proportional payment to creditors at the same level of priority, but did not cause Mr Kotov the damage he alleged, because the 100% satisfaction of all first-level creditors was not possible on account of the lack of assets available for distribution. The sum repaid to Mr Kotov was thus calculated in proportion to the amount of his claim and to the assets realised in the course of the liquidation ...”

The court further pointed out that the liquidation process was still pending and that the applicant’s claim could thus be satisfied.

On 17 June 1999 the Regional Commercial Court confirmed the statement of affairs, as presented by the liquidator and approved by the general meeting of creditors, and closed the insolvency procedure on grounds of insufficient assets.

After the Government had been given notice of the application, the President of the Supreme Commercial Court of the Russian Federation lodged, on 31 January 2001, an application for supervisory review (protest) against the decisions of 4 February, 31 March and 9 June 1999 (see paragraphs 25-27 above), on the ground that they had been given in breach of Article 22 of the Code of Commercial Litigation, which determined the jurisdiction of the commercial courts. Among other things, he stated that the examination of the applicant’s complaints of 2 September 1998 and 27 January 1999, in the context of the insolvency procedure opened against the bank, had been contrary to the 1992 Act governing such proceedings. Since those complaints had concerned a dispute between the applicant and the liquidator, they were not related to the insolvency procedure as such and the applicant should have submitted them to the courts of general jurisdiction.

On those grounds the President sought the annulment of the decisions at issue and the discontinuance of the proceedings concerning the above-mentioned complaints. On 17 April 2001 the Presidium of the Supreme Commercial Court of the Russian Federation fully granted those requests, espousing the arguments raised in the application.

On 1 June 2001 the applicant submitted a request for revision of the 17 April 2001 decision to the same Presidium. On 4 July 2001 his request was dismissed as ill-founded by the Vice-President of the Supreme Commercial Court.

Under Article 63 of the Civil Code, after the expiry of the period within which creditors have to file their claims, the liquidation committee draws up a provisional statement of affairs containing information on the bankrupt’s estate, the claims filed by the creditors and the results of the examination of those claims. The statement has to be approved by the body that has taken the decision to wind up the company. If the company’s monetary assets are insufficient to satisfy the creditors’ claims, the liquidation committee will sell off the estate by auction. The distribution of assets to the creditors may begin in accordance with the interim statement once it has been approved, except in respect of fifth-level creditors who will not be able to receive any money owed to them for one month following that approval. Once all the payments have been made, the final statement of affairs is drawn up and approved in the same manner. Should the assets prove insufficient, the unsatisfied creditors may request the courts to order the owner of the company to honour their claims out of his own personal funds.

Article 64 of the Civil Code, as in force prior to 20 February 1996, made a distinction between five classes of creditors, providing that payment could be made to a given class only when the creditors at the previous level had been satisfied. According to this classification the applicant belonged to the fifth class of “other creditors”. Article 64 made no mention of a class of creditors who were pensioners, Second World War veterans or persons in need.

Under a new provision that was inserted into this Article on 20 February 1996, when a bank or other lending institution is wound up, private persons having made deposits with it are to be repaid as a first priority.

Article 64 further provides that where a legal entity in liquidation has insufficient assets, they must be distributed among creditors at the same level in proportion to their respective claims.

Under section 3 §§ 1 and 2 of the 1992 Act, insolvency cases fall within the jurisdiction of the commercial courts, which examine them in accordance with the rules laid down in the Act or, where no such rule exists, in accordance with the Code of Arbitration Procedure of the Russian Federation.

Under section 15 of the Act, insolvency procedures are opened in order to satisfy the creditors’ claims on a pari passu basis, to declare the bankrupt released from his obligations and to protect the parties from unlawful actions against each other.

Section 18 § 2 provides that, after a company has been declared insolvent and an insolvency procedure has been opened against it, any claims against the company’s assets may be submitted only in the context of those proceedings.

Under section 19, the commercial courts appoint the liquidator and, in the cases provided for by the Act, examine the lawfulness of acts of the parties involved in the insolvency procedure. Article 20 lists those parties as the liquidator, the creditors’ committee, the creditor, etc.

Under section 21 § 1 the liquidator takes control of the bankrupt’s property, analyses the financial situation, examines the merits of the creditors’ claims, accepting or rejecting them, oversees the liquidation process to realise the assets, takes over the administration of the insolvent entity, sets up and heads the liquidation committee, and convenes the general meeting of creditors.

In accordance with section 21 § 2, taken together with section 12 § 4, candidates to the office of liquidator must be economists or lawyers or have experience of company management. They must not have a criminal record. No persons holding a position of responsibility in a company that is a debtor or creditor may be appointed. Candidates to the office of liquidator must declare their income and assets.

Under section 21 § 3 the liquidator may challenge any decisions of the general meeting of the creditors’ committee when those decisions fall outside the remit of that meeting.

Under section 27 § 1, after the expiry of a two-month period within which the creditors must submit their claims against the bankrupt, the liquidator will draw up a list of the accepted and rejected claims indicating the amounts for those that have been accepted and the level of priority for each one. The list must be sent to the creditors within a period of two months.

Section 30 establishes the various levels of priority for the distribution of the proceeds of the liquidation. Payment of the sums due to creditors at a given level is made once those at the previous level have been satisfied (paragraph 3). If not enough assets are realised to pay in full the creditors at a given level, the money that is available will be paid to them pari passu in proportion to the amounts of their respective claims (paragraph 4). Section 30 makes no mention of a class of creditors who are disabled, Second World War veterans or persons in need. Paragraph 1 provides that any expenses of the liquidation, the liquidator’s fees and the expenses of the debtor company’s ongoing operations must take priority over the claims of first-level creditors.

Section 31 provides that a creditor may challenge before the commercial courts any decision of the liquidator which, in his view, breaches his rights and legitimate interests.

Under section 35 § 3, any claims that cannot be satisfied because the proceeds of the liquidation are insufficient will be regarded as extinguished.

Section 38 provides that the bankrupt will be regarded as wound up from the time of its exclusion from the corresponding national register, pursuant to the decision of the commercial court closing the insolvency procedure.

Section 21 § 3 of the 1998 Act provides that creditors are entitled to seek compensation from the liquidator in respect of any damage that the latter may have caused to them by an action or omission in breach of the law.

In accordance with section 98 § 1, sub-paragraph 7, of this Act, claims against the bankrupt may be submitted only in the context of the insolvency procedure (see also section 18 § 2 of the 1992 Act).

Section 114 provides for the same principles of distribution and pari passu repayment as section 30 of the 1992 Act.

Under Article 131 of the Code, where a commercial court orders the defendant to carry out a specific act other than a transfer of property or payment of a pecuniary award, the court will indicate by whom, where and within what time-limit the act must be carried out.

Article 143 provides that insolvency cases are to be examined by commercial courts in accordance with the Code and with the specific provisions of the insolvency legislation.

Paragraph 4, concerning the constitutionality of section 18 § 2 of the 1992 Act (section 98 § 1 in conjunction with sections 15 § 4 and 55 § 1 of the 1998 Act) reads as follows:

“... when examining the claims of creditors who are private persons ..., the commercial courts do not have jurisdiction to issue binding directions of a pecuniary nature to the liquidator, acknowledging the existence of a claim or right in favour of creditors .... This limitation ... must not be interpreted as preventing the courts of general jurisdiction from examining on the merits the pecuniary claims... of those creditors ..., in accordance with the legislation on insolvency.

Nor do the provisions at issue contain any clauses that would prevent the commercial courts from giving decisions that enable the persons concerned to secure in full their right to judicial protection in the context of insolvency procedures, especially as other provisions of the Federal Law on insolvency (bankruptcy) precisely provide for the settlement of disputes through the courts (sections 41, 44, 57, 107, 108 et al.).

The refusal by a commercial court to examine a complaint on the grounds that it does not have jurisdiction ... does not prevent the creditor from applying to the courts of general jurisdiction in order to secure the protection of his rights ... The right to judicial protection, as enshrined in the Constitution, must be upheld even in the absence of legislative norms establishing a division of jurisdiction between the commercial courts and the courts of general jurisdiction.

It follows from this interpretation that [the provisions at issue] do not prevent the courts of general jurisdiction from examining claims filed by non-corporate creditors against the liquidator and seeking ... compensation for damage, nor do they prevent the commercial courts from securing the enforcement, in accordance with the above-mentioned Federal Law, of the decisions taken by the courts of general jurisdiction. ...”


Violation of P1-3;Not necessary to examine Art. 8;Pecuniary damage - financial award;Costs and expenses partial award - Convention and domestic proceedings

Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Françoise Tulkens;Khanlar Hajiyev;Loukis Loucaides;Sverre Erik Jebens

The applicant has been a member of the Athens Bar since 1960. He stood in the parliamentary elections of 9 April 2000 in the first constituency of Athens as a candidate on the Nea Dimorkatia party’s list. He obtained 44,387 votes and was elected as a member of parliament for a four-year term by decision no. 799/2000 of the Athens Court of First Instance.

On 18 February 2003 Mrs Apostolou, a voter in that constituency, lodged a complaint against the applicant with the Special Supreme Court, the judicial body which, under Articles 58 and 100 of the Constitution, had jurisdiction, inter alia, to remove a member of parliament from office in the event of disqualification. Mrs Apostolou referred, in particular, to the incompatibility between the office of a member of parliament and the fact that the applicant was practising as a lawyer. This incompatibility had been enshrined in the Constitution for the first time on the occasion of a constitutional revision in 2001. The new Article 57 of the Constitution now states that the duties of a member of parliament are incompatible with all professional activity, although it does provide for the introduction of exceptions through legislation. However, the implementing legislation was never enacted, since, according to information submitted by the applicant, the Chamber of Deputies voted against the draft law in February 2003. Article 115 § 7 of the revised Constitution indicated that the rule on disqualification in question would come into force once the implementing legislation provided for in Article 57 had been enacted and, at the latest, on 1 January 2003 (see paragraph 16 below).

The hearing before the Special Supreme Court was held on 7 May 2003. Before that court, the applicant alleged, inter alia, that there had been a violation of Article 3 of Protocol No. 1 and argued that, until such time as the implementing legislation provided for in Article 57 of the Constitution had been enacted, the disqualification could not be applied. He also claimed that the disqualification could not be applied to members of parliament who had been elected prior to the revision of the Constitution. Submitting several documents in evidence, he added that he had ceased receiving fees as of 1 January 2003 and that he was carrying out his activities free of charge, with the result that he could not be deemed to be practising a profession within the meaning of Article 57.

On 3 July 2003, by judgment no. 11/2003, the Special Supreme Court allowed Mrs Apostolou’s complaint and ruled that the applicant had forfeited his seat. In particular, the court dismissed the applicant’s argument that he could not be deemed to be practising his profession because he had not received fees for his services since the rule on disqualification had come into force. However, three members of the court considered that “the concept of practising a profession is very closely linked to receipt of an income, particularly through a systematic and long-term activity carried out for the purpose of ensuring [the individual’s] livelihood”. With regard to the other arguments raised by the applicant, the Special Supreme Court found as follows:

“... [A]s is clear from Articles 115 § 7 and 57 § 1, paragraph 3, of the Constitution, the constituent body, in adopting the rule whereby the duties of a member of parliament are incompatible with the exercise of any profession, did so not only with a view to ensuring the independence of members of parliament, but also to ensure that the latter are able to carry out their duties in the best possible conditions and without distraction ... At the same time, the Constitution delegated to Parliament the power to introduce exceptions to the [general] rule of professional disqualification, in other words, the power to list those professional activities which would be compatible with the duties of a member of parliament ... In addition, [the same provisions state that] the rule establishing the incompatibility between the duties of a member of parliament and the practising of any profession was to come into force, at the latest, on 1 January 2003 ..., even if the law indicating the professional activities that are compatible with the duties of a member of parliament had not been enacted by that date ... The only consequence of the failure to enact this legislation ... is that the rule on disqualification for members of parliament is applicable, without exception, from 1 January 2003 ... Further, the argument put forward by the applicant in his submissions to the effect that the disqualification is not applicable to members of the current Chamber of Deputies, since this would be contrary to the constitutional principle of legitimate expectation, must be dismissed as unfounded, especially since a constitutional provision cannot be set aside on the ground that it is contrary to another provision or principle of the same Constitution. This follows from the formal equality of all provisions of the Constitution and the principles arising from them, which requires that each constitutional provision be applied in a binding manner with regard to the specific area which it governs ...”

In July 2003 the applicant was replaced as a member of the Chamber of Deputies by the first substitute on his party’s list for the first constituency of Athens.

At the time of the parliamentary elections of 9 April 2000 in which the applicant was a candidate, Article 57 § 1 of the Constitution was worded as follows:

“The duties of a member of parliament are incompatible with the functions or position of a member of a board of directors, chairperson or director general or their deputies, or of an employee of a commercial firm or enterprise enjoying special privileges or public service concessions or receiving a regular State subsidy.”

The new Article 57 of the revised Constitution provides:

“1. ... [paragraph 3] The duties of a member of parliament are also incompatible with the exercise of any profession. Activities compatible with parliamentary office, as well as matters relating to insurance and pension issues and to the manner in which members of parliament return to their profession at the end of their parliamentary term, shall be specified by law. ...

[paragraph 4] Violation of the provisions of the present paragraph shall result in forfeiture of parliamentary office and shall render related contracts or other acts null and void, as specified by law.

The transitional provision of Article 115 § 7 of the Constitution provides:

“The incompatibility of parliamentary office with the exercise of any profession, provided for by the penultimate paragraph of Article 57 § 1, shall come into force upon promulgation of the law provided for in the same provision and on 1 January 2003 at the latest.”

In December 2005 the present government announced its intention to carry out a further revision of the Constitution. On 17 January 2006 Mr Karamanlis, the current Prime Minister, presented the broad outlines of the proposed revision to his party’s parliamentary group. He stated, inter alia: “recent experience shows that it is necessary to amend the constitutional provision on the professional disqualification of members of parliament; we propose lifting the absolute prohibition and replacing it with a partial prohibition.”

During the sittings of 13 and 20 January 1998 of the parliamentary committee responsible for preparing the revision of the Constitution, members of the opposition expressed their views as follows (extracts):

Mr Souflias:

“I suggest adding a provision to Article 57 which would read as follows: the duties of a member of parliament are incompatible with the exercise of any professional activity.”

Mr Panagiotopoulos:

“Constitutional provision: a member of parliament may not exercise any other profession.”

Mr Varvitsiotis:

“I believe that a member of parliament should not exercise any other professional activity during his or her term of office.”

In its final report of 30 March 1998, the above-mentioned parliamentary committee proposed that Article 57 of the Constitution be amended, and expressed its opinion as follows:

“It is proposed, by a large majority, to revise Article 57 in order to redefine the work, powers and activities which are incompatible with the duties of a member of parliament in order to take account of current information about the State’s role in the economy. Forfeiture of one’s parliamentary seat is also foreseen as a sanction for exceeding the limit set on election expenditure.”

In its report of 23 October 2000, the parliamentary committee responsible for preparing the revision of the Constitution after the elections of 9 April 2000 made no mention of the introduction of an absolute professional disqualification.

At the sitting of 28 February 2001, Mr Yannopoulos, a member of the majority parliamentary party and a former Minister of Justice, spoke as follows (extract):

“What type of Parliament do you want? Do you want to exclude scientists and well-known figures? ... This prohibition exists in no other country ... You will find yourselves in the dock at the European Court of Human Rights, since a legislative prohibition on being elected to Parliament on the ground of one’s profession amounts to a breach of every citizen’s personality rights ...”

At the sitting of 6 April 2001, Mr Pavlopoulos, a member of parliament, then spokesperson for the opposition and currently Minister of the Interior, stated (extract):

“... The initial philosophy underlying the revision of this Article was that members of parliament could exercise professional activities with the exception of those prohibited by the Constitution; this is the logic of the decision [that we adopted within the revision committee]. Yet now, before a plenary sitting of the Chamber, you are putting forward a position that is the exact opposite of that ... All of a sudden, in the middle of the procedure, you are introducing an amendment which, in reality, completely overturns the content of the revision of Article 57 ... This is not a simple amendment, but a total reversal of the logic underlying the revision of Article 57.”

Several legislative systems make it incompatible to hold a seat in Parliament and simultaneously to hold senior office in the executive branch (Head of State, Prime Minister, Minister or Minister of State) or high office within the judiciary (president or member of a constitutional or supreme court, of an administrative court, of the Conseil d’Etat or of another specialised senior court, such as the Audit Court). This is the case, for example, in Austria (Articles 61, 92 § 2, 122 § 5, 134 § 4 of the Federal Constitutional Law), Belgium (Article 50 of the Constitution), Spain (Article 70 of the Constitution and section 6 of the 1985 implementing Law on the general electoral system), Estonia (section 7 of the Parliamentary Rules of Procedure Act), Finland (Article 27 of the Constitution), France (Chapter IV of the Electoral Code), Luxembourg (Article 54 of the Constitution), “the former Yugoslav Republic of Macedonia” (section 9 of the Status of Members of Parliament Act 2005), the Netherlands (Article 57 § 2 of the Constitution) and Portugal (section 5 of the Assembly of the Republic (Elections) Act and section 20(1) of the Status of Members of Parliament Act). In some countries, however, government ministers take part in parliamentary work (Spain, Poland, Romania).

Certain disqualifications from holding a parliamentary seat concern positions which could jeopardise parliamentarians’ independence as a result of hierarchical relations within the government.

In the majority of countries, disqualifications of this type concern judges and prosecutors, police officers and members of the armed forces, and all diplomatic and consular staff. This is the case, for instance, in Bosnia and Herzegovina (section 1(8) of the Elections Act), Spain (Constitution), France (Chapter IV of the Electoral Code), Ireland (section 41 of the 1992 Elections Act), Italy (sections 7, 8 and 9 of the Elections Act), Malta (Article 54 of the Constitution), the United Kingdom (section 1(1) of the 1975 House of Commons Disqualifications Act) and Slovakia (Article 77 of the Constitution).

In general, such disqualifications concern civil servants or contract workers employed in the State administration or in regional bodies, autonomous State entities or institutions such as the social security service, or in public companies. This is the case, for example, in Germany (section 8 of the Members of the Bundestag Act), Andorra (section 17 of the 1993 Electoral System and Referendums Act), Belgium (Disqualifications Act of 6 August 1931), Bulgaria (Article 68 of the Constitution), Spain (section 157 of the 1985 implementing Law), Estonia (Article 63 of the Constitution), Hungary (Article 9 of the Status of Members of Parliament Act 1990), Portugal (Article 157 of the Constitution), the Czech Republic (section 12(a) of the Conflict of Interests Act) and the Russian Federation (Article 97 of the Constitution).

In the majority of countries, individuals affected by those disqualifications must resign if they wish to stand for election (as in Bosnia and herzegovina). In other countries (such as Austria or Belgium) they may merely request to be suspended from their professional duties during their term of office.

As a general rule, the disqualifications in this category concern managers or heads of companies, corporations or public or private institutions which have interests in State activities or which receive State aid or grants. They may also concern the chairpersons, general managers or members of the boards of directors of private companies involved in public construction or in property or credit operations (among many other countries, Bulgaria, Spain, France and Italy have such rules).

In some countries, members of parliament may not practise any professional or commercial activity or paid employment during their terms of office, except in the educational sphere, and then only in very exceptional circumstances (Spain, Lithuania, Russia).

The majority of countries do not lay down, in their constitutional or ordinary legislation, an incompatibility with freely practising the profession of lawyer (for example, Andorra, Austria, the Czech Republic, Bosnia and Herzegovina, Estonia, Finland, Hungary, Ireland, Italy, the Netherlands, Poland, the United Kingdom, Serbia and Montenegro, the Slovak Republic, Sweden, Switzerland).

However, restrictions or conditions may be imposed on a member of parliament who practises as a lawyer, based on the requirements of independence, professional ethics and availability. Thus, despite the absence of a legislative prohibition in this regard, the German Federal Court of Justice stated in a judgment of 26 June 1978 that the timetable of Bundestag sittings enabled a member of parliament to practise as a lawyer, subject to the prohibitions concerning conflicts of interest set out in the Lawyers Act and the legal profession’s Code of Ethics.

This specific concept of conflict of interest exists in several countries’ legislative provisions. Thus, in France, Article 149 of the Electoral Code prohibits any lawyer registered with the Bar who is a member of parliament from carrying out, directly or indirectly through an associate or colleague (except before the Haute Cour de justice or the Court of Justice of the Republic), any professional act in criminal cases concerning certain crimes or offences against the State or the areas of finance or the press, or to plead in civil proceedings for companies which receive State grants, financial companies or companies which use savings, companies engaged in civil engineering, construction or property development, or against the State, State-owned companies, local authorities or public establishments.

Similar provisions exist in the legislation of other civil-law countries, such as Italy (section 10 of the Elections Act), Portugal (section 21 of the Statute of Members of the Assembly of the Republic), Romania (section 82 of the Exercise of Public Duties (Transparency Measures) Act (Law no. 161/2003), Title IV on members of parliament, as amended by the Status of Lawyers Act) and Turkey (section 3 of the Disqualifications of members of the Grand National Assembly Act 1984 (Law no. 3069)).

In the common-law countries, the codes of ethics of members of parliament guarantee parliamentarians’ independence vis-à-vis possible conflicts of interest by means of administrative and procedural measures. In the United Kingdom, members of parliament must declare any work or paid employment and have this declaration entered in the register of members’ interests. Failure to register an interest may result in sanctions (Code of Conduct for Members of Parliament and Guide to the Rules relating to the Conduct of Members of Parliament). Similar provisions exist in Ireland (sections 5, 6 and 7 of the Ethics in Public Office Act 1995) and in Malta (Article 5 of the 1995 Code of Ethics of Members of the House of Representatives).

Those procedures for declaring and registering the assets and financial interests of members of parliament have also been adopted in some countries of continental Europe. Thus, the Rules of the Italian Chamber of Deputies provide for a similar system to determine cases of incompatibility: within thirty days of the Chamber’s first sitting, each member must submit a declaration to the speaker concerning the functions occupied by him or her at the time of standing for election, and those commercial or professional activities which he or she continues to carry out. In Switzerland, members of parliament are also obliged to notify their financial interests and any other professional activity carried out by them when they take up their duties (section 11 of the 2002 Federal Assembly Act).

Other more practical limitations and restrictions have been added to those cited above, which are based on the concept of independence and conflict of interest. Various regulations on the status of members of parliament require that they give their parliamentary activities priority over any other private work, whether remunerated or not. In Finland, Parliament may, by a two-thirds majority, require that a member of parliament forfeit his or her seat, permanently or for a specific period, if the individual concerned neglects his or her duties in a significant and repeated manner. In practice, this obligation is reflected in a significant reduction in the time spent working in other professions, or withdrawal from them (as in Sweden).

In Spain, the requirement to carry out parliamentary duties on a full-time basis results in very restrictive rules on disqualification (section 157 of the 1985 implementing Law on the general electoral system); holding a parliamentary seat is incompatible with the direct or indirect exercise of any private or public profession or activity, remunerated by way of wages, salaries, dues, fees or other means (an exception is made for university lecturers). However, section 159(3) of the 1985 implementing Law permits interested parties to apply to the relevant chamber’s disqualification committee for leave to conduct private activities which do not concern public bodies or services, public companies, companies which are financed from public funds or credit or insurance companies.

Parliamentary committees exist in several countries. They may authorise professional activity, including in the public sector, which would otherwise be considered incompatible with the holding of a parliamentary seat (see section 6a(1) and (2) of the Austrian Disqualification Act). In certain cases, those activities must be carried out without remuneration.

A blanket prohibition on exercising any profession, trade or remunerated form of employment, similar to that laid down in the Greek or Spanish legislation, also exists in a more or less rigid form in other countries, especially those of central and eastern Europe, such as Lithuania (Article 6 of the Constitution), “the former Yugoslav Republic of Macedonia” (section 9 of the Status of Members of Parliament Act), the Russian Federation (Article 97 of the Constitution) and Moldova (Article 70 of the Constitution). As in Spain, however, exceptions exist for teaching, scientific research and creative activities.


Preliminary objection joined to merits and dismissed (victim);Violation of Art. 10

Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger

The applicant was born in 1959 and lives in Irpin.

On 23 March 2005 the applicant sent to the State Tax Administration a letter in which she complained that the management of the Academy of the State Tax Service, which was under the authority of the State Tax Administration and at which her son had studied before being expelled in 2004, were engaging in unlawful and corrupt activities.

The relevant parts of the letter read as follows:

“I address you concerning the real situation at the Academy ... [This letter] will concern the flagrantly unfair attitude towards students of the Law Faculty, headed by [S.], to students' parents, with the complete ... support ... of the President of the Academy [M.]...

The reason for [addressing you] is a television report, broadcasted on 22 March 2005, concerning the student protest organised by [M.] against [his] dismissal from the post of President of the Academy. I really hope that my letter can influence the course of events.

My son, Mr Yaroslav Siryk, [who] had successfully and independently entered the Law Faculty of [the Academy], was expelled from it ... I could not even imagine that the methods described below were applied in a State educational institution ...

... My son missed the beginning of studies because of a severe infectious disease ... Subsequently, I was called [to the Law Faculty] and during a private conversation [S.] told me that [students] like my son could not study at her faculty under the normal conditions, and that if I did not want to have problems with [graduation] I had to agree to additional financial conditions, in particular, to pay her 200 [United States dollars] for every exam, and 50 [United States dollars] for every test ... After my unconditional refusal, my road of sorrows began ...

Two or three times a week I was called to the office of the Dean [of the Law Faculty] for numerous [discussions of problems], one of the first of which concerned the checking of [my son's] medical documents ... the [professors] shouted at me, called me a swindler and so on ...

Because he had been on sick leave ... and because of the enduring tense discussions with the Dean and the Deputy Dean ... my son did not have normal conditions in which to study... When I tried to enter the office of the Dean in order to discuss that matter, she ... simply ... pushed me out of the office ...

And I wrote a detailed complaint to the President [of the Academy] ... (a copy is enclosed) ... [T]he President ordered that my son be allowed additional time to take the winter exams... [H]owever, afterwards arbitrariness on a larger scale began: professors were simply receiving from [S.] and [the Deputy Dean B.] ... categorical instructions not to allow my son to take exams... Those instructions were rigorously complied with, as the staff of the Academy was hired on the basis of personal loyalty towards the management or dependency on the management [of the Academy]: numerous relatives ... close friends ... former students [of the Academy] ... about whose knowledge, competence and work experience it is not possible to speak. It is difficult for them to find another job, therefore they are ready to fulfil any assignments, obey any wishes of the management ...

... [S.] and [B.] became so impudent that together they conducted negotiations with me concerning extra-contractual payments [for my son's studies] at the office of [S.]. In a normal civilised country [people] would have already compared the earnings of the State servants and their standard of living. What [amount of] salary enables the Dean of the faculty [S.] to wear different exclusive imported clothes and diamonds every day?!

... This was the rudeness, extortion and derision which I endured during the educational year at the State institution, having paid a substantial amount of money [for the education]. The most alarming thing in this story is that our case is not the only one ...

At the same time [as this was happening to us] ... more than twenty persons were simply kicked out of the Academy in the same way ... the teachers received from the Dean or the Deputy Dean categorical instructions not to allow a particular student to take an exam ...

The whole process of the intentional expulsion of certain [students] and the admission of others on a contractual basis is ... a system of extorting of money from the parents devised by the management of the faculty and the Academy ...

All the actions of [S.], approved by [M.], demonstrate [their] legal incompetence and ruthless abuse of power, though the old [State] regime generously appraised her 'achievements'; during its last days [the old regime] awarded [S.] the title of Distinguished Lawyer, and the President of the Academy promoted her to First VicePresident [of the Academy]

I hoped the new authorities would sort everything out, but [people like S. and M.] feel perfectly at home under any regime.

In addition to the violations described [above], I ask you to look at the following:

On what does [the Academy] spend the budgetary funds and the money from [students'] parents?

- why does the President of ... [the Academy, in whose possession] there is an expensive 'Mercedes', additionally buy an 'Audi A-8' for [the price of] 800,000 [Ukrainian] hryvnias?!

- what is the source of the money and what is the need for the business trips on which [M.] and [S.] constantly go?

- what are the earnings [allowing] the State servant [S.] to wear different expensive ... clothes and diamonds every day?

- how did [S.] manage to gain her doctor's degree so soon [after] having completed her higher education at the Academy ...

- what benefits does [the Academy] receive from the companies of [M's] brother and sister?

- on what grounds did the staff of the Academy obtain double salary payments at the end of 2004 ...

As regards the activities of those persons during the [Presidential] election [of 2004] ... [M.] and [S.] ... did not let students take part in meetings in support of Yushchenko ... Students were forced ... to vote in the Academy under the supervision of the professors ... According to the parents of students [wishing to enter the Academy], during the [2004] summer admission campaign [M.] ... openly stated that he was collecting money for the [Presidential] election [of 2004] ...

The only thing which I wish to try to achieve [is] that my letter helps to restore justice in our small Irpin region ...”

In April 2005 Ms S., who was at the time the First Vice-President of the Academy, instituted defamation proceedings against the applicant in the Kyyevo-Svyatoshynskyi District Court of the Kyiv Region.

Ms S. alleged that by a letter of 23 March 2005 the applicant had disseminated untrue and defamatory statements about her, and asked the court to order the retraction of the statements. Ms S. also claimed compensation for non-pecuniary damage.

The applicant, in her turn, contended that the information contained in the impugned letter was based on facts, some of which could be confirmed by witnesses. She also argued that her statements were, for the most part, value judgments, for which she should not be held responsible pursuant to section 47 of the Information Act. The applicant, relying on the decisions of courts in similar, according to her, defamation cases, also submitted that by her letter of 23 March 2005 she had simply informed the higher authorities about irregularities at the Academy and had not disseminated the statements about Ms S. within the meaning of Article 277 of the Civil Code of 2003.

By a letter of 29 April 2005 the applicant requested the President of the Supreme Court to transfer the case to a district court in Kyiv, stating that Ms S's husband worked as a judge in the Irpin Town Court of the Kyiv Region and could influence the outcome of the proceedings before the Kyyevo-Svyatoshynskyi District Court. By a letter of 3 June 2005 the Deputy President of the Supreme Court informed the applicant that her request had been rejected as unfounded.

On 25 June 2005 the Kyyevo-Svyatoshynskyi District Court, relying on Articles 277 and 280 of the Civil Code of 2003, ruled in part in favour of Ms S. It found that the applicant had failed to prove her statements that the latter had treated the students and their parents unfairly; that she had demanded from the applicant a payment for every exam and test which the applicant's son had had to sit; that she had been rude or shouted at the applicant; that she had called the applicant a swindler; that she had pushed the applicant out of the office; that she had given instructions to the professors not to allow the applicant's son to take exams; that she had not allowed students to attend the meetings in support of V. A. Yushchenko during the Presidential election; that the actions of Ms S. had demonstrated that she was legally incompetent; and that she had exceeded her powers.

The court further held that the above statements had been publicly disseminated, as the letter had been addressed to a legal entity and the applicant could have foreseen that it would be read by more than one person. It also noted that Ms S. had acquainted herself with the text of the letter in the presence of the President of the Academy and representatives of the State Tax Administration.

The court declared the above statements to be untrue and defamatory and ordered the applicant to retract them by rescinding the impugned letter. The court also ordered her to pay Ms S. 1,000 Ukrainian hryvnias (UAH) in compensation for non-pecuniary damage.

On 14 October 2005 the Kyiv Regional Court of Appeal upheld the judgment of the first-instance court in full.

On 25 July 2006 the Supreme Court dismissed the applicant's request for leave to appeal in cassation as unsubstantiated.

The relevant extracts from the Constitution read as follows:

“... Everyone is guaranteed judicial protection of the right to rectify incorrect information about himself or herself and members of his or her family, and of the right to demand that any type of information be rectified, and also the right to compensation for pecuniary and non-pecuniary damage inflicted by the collection, storage, use and dissemination of such incorrect information.”

“Everyone is guaranteed the right to freedom of thought and speech, and to the free expression of his or her views and beliefs.

Everyone has the right to freely collect, store, use and disseminate information by oral, written or other means of his or her choice.

The exercise of these rights may be restricted by law in the interests of national security, territorial indivisibility or public order, with the purpose of preventing disturbances or crime, protecting the health of the population, the reputation or rights of other persons, preventing the publication of information received confidentially, or maintaining the authority and impartiality of justice.”

“Everyone has the right to file individual or collective petitions or to personally appeal to bodies of State power, bodies of local self-government, and to officials ... of those bodies, who are obliged to consider the petitions and to give a substantiated reply within the term established by law.”

The relevant extracts from the Civil Code of 1963 read as follows:

“A citizen or an organisation shall be entitled to demand in a court of law that material be retracted if it is not true or is set out untruthfully, degrades their honour and dignity or reputation, or causes damage to their interests, unless the person who disseminated the information proves that it is truthful ...

A citizen or an organisation concerning whom material that does not conform to the truth and damages their interests, honour, dignity or reputation has been disseminated shall be entitled to demand compensation for pecuniary and non-pecuniary damage as well as a retraction of such information ...”

The relevant extracts from the Civil Code of 2003 read as follows:

“1. A physical person whose non-pecuniary rights have been infringed as a result of dissemination of untrue information about him or her and (or) members of his or her family, shall have the right to reply, and [the right to] the retraction of that information ...

Negative information disseminated about a person shall be considered untrue if the person who disseminated it does not prove the contrary.

Untrue information shall be retracted by the person who disseminated the information ...

If the untrue information is contained in a document which has been accepted (issued) by a legal entity, that document shall be recalled.

A physical person whose non-pecuniary rights have been infringed in printed or other mass media shall have the right to reply, and also [the right to] the retraction of the untrue information in the same mass media, in the manner envisaged by law ...

Untrue information shall be retracted irrespective of the guilt of the person who disseminated it.

Untrue information shall be retracted in the same manner as it was disseminated.”

“1. If there has been pecuniary and/or non-pecuniary damage caused to a physical person as a result of a violation of his personal non-pecuniary rights, the damage shall be compensated.

The relevant extracts from the Information Act provide as follows:

Liability for the infringement of the legislation on information shall be borne by persons responsible for the following infringements:

dissemination of information that does not correspond to reality, [or] defames the honour and dignity of a person ...”

“No one may be held liable for making value judgments.

Value judgments, excluding insults and libel, are statements which do not contain factual data, in particular, criticism, the evaluation of actions, and also statements which cannot be said to contain factual data because of the way they are worded, in particular, [with] the use of hyperbole, allegory, or satire. Value judgments are not subject to retraction and their truthfulness need not be proved ...”

Relevant extracts from the judgment read as follows:

“... The Constitutional Court of Ukraine found that:

A citizen, [V.A.S.], has lodged with the Constitutional Court of Ukraine a request for an official interpretation of the provision of Article 7 § 1 of the Civil Code [of 1963] containing the phrase “disseminated such information”. ... According to the applicant, the practical need for an official interpretation is justified by the lack of coherence in the application of that provision by the courts of Ukraine ...

[The applicant] maintains that the Octyabrskyi Court of Poltava found that his petition to the Poltava Regional Tax Administration against a tax inspector for unlawful actions ... disseminated information which did not correspond to reality, and degraded the honour, dignity and reputation of the tax inspection employee. By its judgment, the court obliged [V.A.S.] to retract the information by sending a petition to the relevant department of the [Tax] administration, and to compensate that official for the damage caused.

A judicial panel of the Poltava Regional Court of Appeal and a panel of judges of the Judicial Chamber in Civil Cases of the Supreme Court of Ukraine dismissed the appeal in cassation of [V.A.S.] against the judgment of the district court.

... The Constitutional Court of Ukraine considers that petitions by citizens to a lawenforcement body which contain certain information concerning the failure of officials to comply with the laws, are submitted ... not for the purpose of notifying the community or citizens of such matters, but seeking to have it verified by competent officials. Therefore, such petitions cannot be considered to constitute dissemination of information degrading the honour, dignity or reputation of, or causing damage to, the interests of an official of a law-enforcement body, within the meaning of Article 7 § 1 of the Civil Code ...

At the same time, [if] petitions to a law-enforcement body contain knowingly untrue information, this will lead to disciplinary, civil-law, administrative, or criminal liability ...

In particular, Articles 173-1 and 212-1 of the Code of Administrative Offences of Ukraine provide for administrative liability for dissemination of untrue rumors which can provoke panic among the population or a violation of public order, and for notification to registration bodies of acts of civic status of knowingly untrue information.

The Criminal Code of Ukraine provides for criminal liability for knowingly untrue reports concerning a planned explosion, fire, or other action which may cause deaths or have other grave consequences (Article 259), knowingly untrue reports of crimes to a court, prosecutor, investigator, or body of inquiry (Article 383) etc ...

The dissemination of untrue information concerning the private (family) life of an official of a law-enforcement body in his personal or citizen's capacity may constitute a ground for the applicant's civil-law liability under Article 7 of the Civil Code.

In the light of the foregoing ... the Constitutional Court of Ukraine decides that:

Under Article 7 § 1 of the Civil Code ... 'disseminated such information' shall be understood, within the context of the constitutional appeal, as meaning that statements made in letters, petitions or complaints to a law-enforcement body by a person who is of the view that officials of that body have infringed his rights in the exercise of their functions cannot be considered to be dissemination of information degrading the honour, dignity or reputation of, or causing damage to, the interests of those persons.

[The inclusion of] knowingly untrue information in letters, petitions, or complaints to a law-enforcement body shall lead to the liability provided for by the current legislation of Ukraine.

The judgment of the Constitutional Court of Ukraine is binding on the territory of Ukraine, is final and may not be appealed against ...”

The relevant extracts from the Resolution provide as follows:

“... 16. According to Article 40 of the Constitution of Ukraine everyone has the right to file individual or collective petitions or to personally appeal to bodies of State power ...

The courts shall take into account that, if a person files a petition with the bodies mentioned [above] which contains certain information, and if that body is competent to verify such information and to give a reply, [the fact that] ... the information has not been confirmed as true ... may not as such constitute a ground for allowing a [defamation] claim, as in such a case the person has exercised his constitutional right under Article 40 of the Constitution, and [has not] disseminated untrue information.

If a person files a petition with the law-enforcement bodies, the courts should take into account the conclusions of the judgment of the Constitutional Court of Ukraine of 10 April 2003 ... (the case concerning dissemination of information) ...”


Javier Borrego Borrego;Karel Jungwiert;Margarita Tsatsa-Nikolovska;Mark Villiger;Peer Lorenzen;Renate Jaeger;Volodymyr Butkevych

The applicant, Ms Gisela Zwar, is a German national who lives in Sonsbeck in Germany. She was represented before the Court by Mr R. Battenstein, a lawyer practising in Düsseldorf.

From August 1967 to November 1995 the applicant’s late husband Z. exercised the profession of a painter. In November 1995 he was diagnosed as suffering from leukaemia. He died of the disease on 6 August 1996.

On 29 December 1995 the medical clinic where the applicant was treated gave notice of the disease to the Wuppertal Insurance Association for the Building Professions (Bau-Berufsgenossenschaft) on the ground that Z.’s disease might have been work-related, which would entail pension benefits.

On 28 January 1997 the Insurance Association refused to establish that Z.’s leukaemia was work-related for having been caused by his exposure to benzene during his work as a painter. Following enquiries on Z.’s former working conditions and relying on expert opinion, the Insurance considered that the dosage of benzene Z. had been exposed to during his work had not been sufficiently high to cause a work-related disease.

On 4 February 1997 the applicant lodged an administrative appeal. She notably relied on two expert opinions commissioned by Z.’s health insurance. On 24 October 1997 the Insurance Association, having heard further expert opinion, rejected the applicant’s administrative appeal.

On 21 November 1997 the applicant lodged a motion with the Duisburg Social Court (Sozialgericht), alleging that Z.’s disease had been caused by over-exposure to benzene, notably during the first years of his professional life.

On 31 May and 26 August 1999 a court appointed expert submitted his expert opinion. He considered that there was no conclusive evidence that the applicant’s illness had been caused by exposure to benzene at his work-place.

On 4 February 2000 the Social Court summoned Z.’s health insurance to join the proceedings as a third party.

By judgment of 8 February 2000 the Social Court granted the applicant’s claim. Relying mainly on the expert opinions commissioned by the third party, the Social Court considered that it had been established with a sufficient amount of probability that Z.’s disease had been caused by his exposure to benzene at his workplace.

This judgment was served on the applicant’s counsel on 28 February 2000.

On 23 March 2000 the defendant Insurance Association lodged an appeal with the Northine-Westfalia Social Court of Appeal (Landessozialgericht). In support of her allegation that Z.’s disease had not been caused by exposure to benzene the defendant submitted a further expert opinion.

On request by the Court of Appeal one further expert submitted his expert opinion on 4 February 2002.

Subsequently, the applicant asked for a fresh expert opinion to be prepared pursuant to section 109 of the Social Courts Act (see relevant domestic law, below), and named Prof W. as an expert.

On 2 May 2002 Prof W. declined the request as he did not consider it possible to establish whether the disease had been caused by exposure to benzene.

Following this, the applicant named another medical expert who submitted his expert opinion on 31 October 2002.

In reply, the defendant party submitted a further opinion submitted by another expert on 30 April 2003.

During the hearing held before the Social Court of Appeal on 15 October 2003 the applicant submitted a presentation held by the expert Dr G. on a conference relating to the assessment of exposure to benzene at painter’s workplaces. According to the applicant, this presentation established that Z. had been exposed to dosages of benzene which exceeded the limits set down in the relevant safety guidelines. She requested the Court of Appeal once again to hear the experts with regard to these submissions.

On 15 October 2003 the Social Court of Appeal quashed the Social Court’s judgment, rejected the applicant’s claim and refused to grant the applicant leave to appeal. Having regard to the expert opinions and statements submitted during the administrative and court proceedings, the Court of Appeal considered that it could not be established with sufficient probability that Z.’s disease had been caused by overexposure to toxic substances at his workplace.

By way of conclusion, the Social Court of Appeal found as follows:

“Summing up, the Senate considers that the facts of the case have been sufficiently established by the medical expertises and opinions by Dr P., Prof Wi., Prof T, and, in particular, by the expert Prof S. The differing assessment of the causation issue submitted by Prof M., Prof We. and the expert Prof No. - who had been heard according to section 109 of the Social Courts Acts - has been reliably rebutted. The plaintiff’s submissions do not induce the court to undertake further examinations. It was, in particular, not necessary to comply with the plaintiff’s request to hear the experts with regard to the presentation submitted during the oral hearing. Even assuming that the dosage of benzene Z. had been exposed to had exceeded the limits of the relevant safety guidelines, this does not prove that the disease had been work-related, as the safety guidelines are based on what is technically feasible and do not prove that an excess of the safety limits causes health damages.”

This judgment was served on the applicant’s counsel on 22 March 2004.

On 9 July 2004 the Federal Social Court (Bundessozialgericht) rejected the applicant’s complaint against the refusal to grant her leave to appeal. That court considered that the applicant had failed sufficiently to establish which considerations should have induced the Court of Appeal to raise further evidence, as requested by the applicant.

On 1 August 2004 the applicant lodged a constitutional complaint.

On 8 September 2004 the Federal Constitutional Court (file-no. 1 BvR 1179/04), sitting as a panel of three judges, refused to admit the applicant’s constitutional complaint as being inadmissible. This decision was served on the applicant’s counsel on 22 September 2004.

Section 109 of the Social Court Act reads as follows:

“(1) On application by the insured person, the disabled person, the person entitled to benefits or his surviving dependants, a physician to be determined shall be heard as an expert. The hearing in respect of this expert opinion may be made dependant on whether the applicant advances the costs and, unless the court decides otherwise, the applicant in the end bears the costs.

(2) The court may reject an application where its admission would delay the settlement of the legal dispute and the court is convinced that the application was submitted in attempt to delay proceedings or the application was not submitted earlier due to gross negligence.”


The applicant is a German citizen born in 1928 and residing in Liechtenstein since 1967. In the proceedings before the Court he is represented by Mr G. Marxer, a lawyer practising in Vaduz.

A.

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant's wife retired in 1985 and received a single old age pension (einfache Altersrente). Since 1 January 1991, the monthly allocation amounted to 1,880 Swiss Francs (SFR). The applicant retired in 1993.

On 7 December 1993 the Liechtenstein Old Age Pension Insurance Institution (Alters und Hinterlassenenversicherung) fixed a common married couple's pension (Ehepaar-Altersrente) for the applicant and his wife in the amount of SFR 1,880 per month. In accordance with the relevant legislation, the husband is entitled to receive the married couple's pension, while the wife's former claim to a single old age pension ceases and is replaced by a derived right to payment of half of the common pension. Further, the married couple's pension is calculated on the basis of the husband's contribution years. It is 150% of the husband's single pension. As the applicant's insurance period was shorter than his wife's, the resulting amount was lower than his wife's single pension. According to the relevant provisions a compensation was added to arrive at the amount of his wife's former pension.

On 13 December 1993 the applicant filed an objection (Vorstellung) against the above decision. He argued that the method of calculation applied rendered his own contributions null and void as the married couple's pension was no higher than his wife's single pension. Further, he held that he and his wife were discriminated against in relation to other married couples. He requested two separate pensions to be paid instead of the common pension.

On 20 January 1994 the Liechtenstein Old Age Pension Insurance Institution dismissed the applicant's objection. As to the applicant's first argument it observed that the Liechtenstein pension scheme was based on the principle of social solidarity. Thus, it did not grant pension claims in direct relation to the contributions paid. As to the applicant's second argument, the Insurance Institution agreed that there was unequal treatment of men and women as only the husband was entitled to the married couple's pension, which was calculated solely on the basis of the husband's contribution years. Moreover, in a case like the applicant's where the husband had an incomplete insurance career while his wife's was complete, a lower married couple's pension was paid than in the opposite case. However, the legal provisions were clear and precise and did not permit any other interpretation. The question could, thus, only be resolved by an amendment of the law. Such an amendment was envisaged for December 1996.

On 21 September 1994 the Liechtenstein Court of Appeal (Obergericht), upon the applicant's appeal, confirmed the Insurance Institution's decision as being in conformity with existing legislation even if it was contrary to the principle of non-discrimination. It also refused the applicant's motion to interrupt the proceedings and to request the State Court (Staatsgerichshof) to examine the constitutionality of the contested provisions of the Old Age Pension Act. It found that in the event of an abrogation of these provisions the applicant's claims would not find any other legal basis without further initiative of the legislator.

On 15 May 1995 the Liechtenstein Supreme Court (Oberster Gerichtshof) dismissed the applicant's appeal on points of law. It stated that the unequal treatment of husband and wife in the current pension scheme could not be remedied by the courts, but required an amendment of the relevant law by the legislator.

On 23 October 1995 the applicant, after having lodged a complaint with the State Court, challenged State Court judge Hoch for bias on the ground that the latter had written a dissertation on social security law, which had been partly financed and distributed by the Old Age Pension Insurance Institution.

On 24 May 1996 the Liechtenstein State Court, sitting as a Constitutional Court (Verfassungsgerichtshof), rejected the applicant's challenge for bias and partly granted his constitutional complaint.

As to the applicant's challenge for bias, the State Court found that the past financial support and distribution of a dissertation by a public law institution did not create such a personal link as to affect a judge's impartiality.

As to the applicant's complaint, the State Court found that the applicant's constitutional rights were violated by the Supreme Court's decision. The married couples' pension system, based on a traditional view of marriage, was unconstitutional as being contrary to the principle of non-discrimination on the basis of gender, in particular as only the husband's contribution years were decisive for the calculation of the married couple's pension. Moreover, it was unconstitutional as being contrary to the general principle of equal treatment, in that married and unmarried couples were treated differently with regard to their pension benefits.

However, the State Court rejected the applicant's request to quash the contested judgment and to set aside the relevant provisions in the Old Age Pension Act. It noted that it would, technically speaking, be possible to set aside a number of provisions with the result that the applicant and his wife would each be entitled to a single old age pension. However, this would cause massive disadvantages to others, in particular to married couples where the wife did not have an own insurance career. The situation was even more complex in view of the Social Security Agreement between Liechtenstein and Switzerland which could only operate if the requirements for pension claims were more or less identical in both States. In conclusion, the State Court did not see itself in a position to set aside the contested provisions, given the complexity of social security law and the statutory time-limit of a maximum of six months for suspending an abrogation. The State Court went on to say that despite these considerations the continuing application of unconstitutional legislation for a protracted period would be unacceptable. However, a comprehensive legal reform with the explicit aim of guaranteeing gender equality in social security law was already being prepared and Parliament had requested the Government to submit all necessary amendments of social security law before the end of 1996. Moreover, the draft amendment of the Old Age Pension Act included provisions according to which couples in the position of the applicant and his wife would be entitled to two single pensions. Having regard to the time-table for the pending reform, the above-mentioned maximum time-limit of six months for enacting new legislation could possibly be complied with. Nevertheless, it was not justified to annul the unconstitutional provisions with a six-months suspension as the envisaged date of entry into force, namely 1 January 1997, would become illusory if for instance a referendum was requested. In this case, the annulment would become effective and would entail all the negative consequences described above.

In fact, the amendment to the Old Age Pension Act was adopted in September 1996 (see below). According to its provisions the applicant and his wife each receive a single pension of SFR 1,086 and 1,990, respectively, as of 1 January 1997.

B. Relevant Domestic Law

The Liechtenstein Old Age Pension Act (Gesetz über die Alters- und Hinterlassenenversicherung) of 14 December 1952, Law Gazette (LGBl) 1952/29, before its amendment, provided for common married couple's pensions which were to be paid as soon as both spouses reached the retirement age. When a common pension was paid the wife's claim for pension payments expired. Only the husband's contribution years were decisive for the calculation of the married couple's pension.

By amendment of 18 September 1996, Law Gazette 1996/192, to the Old Age Pension Act, the married couple's pension system was replaced by a scheme providing single pensions for both spouses. Married couple's pensions existing at the time of the amendment were transformed into two single pensions as of 1 January 1997, subject to the clause that the total amount of both pensions was not to be lower that the previous married couple's pension.