The applicants, Mr Albrecht Wendenburg and seventeen others, are German nationals. Their names and personal details are listed in the Annex at the end of this decision. They are represented before the Court by Mr Wolfgang Peukert, a lawyer practising in Karlsruhe, Germany. The respondent Government are represented by Mr Klaus Stoltenberg, Ministerialdirigent.

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

The applicants enjoyed exclusive rights of audience (Singularzulassung) in German courts of appeal pursuant to section 25 of the Federal Barristers Act (Bundesrechtsanwaltsordnung) of 1 August 1959.

Under section 25, no barrister with exclusive rights of audience in a court of appeal was entitled to such a right in any other court. This meant that in civil matters, they could not appear before the lower courts, while lawyers with exclusive rights of audience in the lower courts could not appear in the courts of appeal.

Section 25 was held unconstitutional by a decision of the Federal Constitutional Court of 13 December 2000.

The applicants, most of whom have families and children to support, had previously worked on some 100 to 500 appeals per year, which brought in 90% or more of their annual income and covered between 40% and 50% of their office expenses.

In its decision of 13 December 2000, the Federal Constitutional Court, following a complaint lodged by a lawyer with an exclusive right of audience in the lower courts, reached the following conclusions:

“1. Section 25 of the Federal Barristers Act is incompatible with Article 12 § 1 of the Basic Law. The provision is valid in respect of existing rights of audience until 30 June 2002. As from 1 January 2002, barristers enjoying a right of audience in the courts of appeal may, on application, at the same time acquire rights of audience in district and regional Courts with jurisdiction in the place in which their practice is located.

In so far as it is confined to the Länder mentioned therein, Section 226 § 2 of the Federal Barristers Act shall cease to apply on 1 July 2002.

The remainder of the constitutional complaint is rejected.

The Federal Republic of Germany shall pay the applicant’s costs.

Grounds:

A.

The applicant, a barrister and notary who has practised in Münster, where he has his chambers, for over five years, directs his constitutional complaint against the fact that, under section 25 of the Federal Barristers Act, he does not also have a right of audience in the Hamm Court of Appeal since the provision concerning exceptions contained in section 226 does not apply to North-Rhine Westphalia.

I.

Most recently amended by the law entailing the application of the EC Directive in the field of the law governing the exercise of the profession of barrister of 9 March 2000 ..., the Federal Barristers Act ... of 1 August 1959 ... in its second chapter sets out in its second schedule a comprehensive regulation of barristers’ admission to bars affiliated to courts. Every barrister must be admitted to a bar affiliated to a specific court of ordinary jurisdiction and is required to establish his practice within the area to which such authorisation extends (Sets. 18, 27 of the Federal Barristers Act). Any barrister admitted to a court of appeal bar may not combine such right with a similar admission to any other court bar ( ... Section 25 of the Federal Barristers Act). In contrast, any barrister admitted to a district court bar may, on request, be admitted to the regional court bar in whose area the said district court has its seat (Section 23 of the Federal Barristers Act). In addition, Section 226 § 2 of the Federal Barristers Act in the text of the Law of 2 September 1994 (... hereinafter referred to as BRNOG) on the New System for the exercise of the profession of barrister and patent lawyer opens up the possibility of lawyers becoming admitted to both regional court bars and court of appeal bars (combined rights of audience), albeit not in the Länder of Brandenburg, Hesse, Mecklenburg-Vorpommern, Lower Saxony, North-Rhine Westphalia, Rhineland-Palatinat and Schleswig-Holstein. The relevant provisions of the Federal Barristers Act read as follows:

‘Section 25

Exclusive nature of admissions restricted to the court of appeal bar

No barrister admitted to the court of appeal bar shall be entitled to admission to the bar of any other court.

Section 226

Concurrent admissions to a district court bar and a court of appeal bar

(1) ...

(2) Barristers admitted to a regional court bar in the Länder of Baden-Württemberg, Bavaria, Berlin, Bremen, Hamburg, Saarland, Saxony, Saxony-Anhalt and Thuringia may, on request, at the same time be admitted to a court of appeal bar if they have previously been admitted to a court of first instance bar for five years.’

Barristers with rights of audience in the courts of ordinary jurisdiction were originally restricted when participating in proceedings to appearing before the court to whose bar they had been admitted. Since 1 January 2000, section 78 of the Code of Civil Procedure has extended rights of audience to all proceedings before the district and regional courts. As previously, only duly accredited barristers may be admitted to the bars of the higher courts ...

Barristers may appear before the Labour-, Finance-, Social - and Administrative Courts, as well as - in criminal matters - before the courts of ordinary jurisdiction in all proceedings and at all levels of jurisdiction regardless of their court of registration.

The Federal Barristers Act of 1959 aimed to restore the legal unity of the law governing the exercise of the profession of barristers ... After the Second World War, differing regulations had emerged in the occupation zones and subsequently in the Länder. In a number of courts of appeal, by way of deviation from the principle of exclusive rights of audience, there had already been an optional combined right of audience in the regional court and the court of appeal, this being the case in Hamburg, Munich, Bamberg, Zweibrücken, Brunswick and Oldenburg. This practice was later introduced in Karlsruhe, Stuttgart and Tübingen. Subsequently, the question as to whether exclusive rights of audience should be preserved or give way entirely or at least in certain fields to combined rights of audience exercised the minds of the German Bundestag and its committees as well as those of the Federal Council over two legislatures ... Finally the Federal Barristers Act, which entered into force on 1 October 1959, provided for an ongoing combined right of audience to the courts of appeal only for barristers admitted to the bars of the Berlin, Bremen and Saarbrücken Regional Court, subject, however, in each case to a waiting period of five years. Furthermore, this right was extended to barristers who already enjoyed combined rights of audience. In Bavaria consideration was given to a combined right of audience for a transitional period.

Ten years later, Hamburg (cf. Section 1 § 51 of the Law on the Amendment of the Federal Barristers Act and the Law on Patent Lawyers of 13 January 1969 ... ), followed a further three years later by Baden-Wurttemberg and Bavaria (cf. Section 1 of the Law on the Amendment of the Federal Barristers Act and the Federal Regulation on Scales and Fees for Barristers and other prescriptions of 24 October 1972 ... ), was included in the circle of Länder in which lawyers enjoyed combined rights of audience. In Hamburg no sufficiently strong body of barristers had managed to develop within the Court of Appeal. When the occasion arose, barristers attached to the regional courts would have themselves sponsored by a colleague admitted to the local court of appeal bar in order to be able to appear before that court themselves (cf. Record of the 328th Session of the Legal Affairs Committee of the Federal Council (Bundesrat) of 13 March 1968, p. 16 with further reference; cf. Summary Record of the 96th Session of the Legal Affairs Committee of the 5th German Bundestag of 24 October 1968, p. 10 and the Written Report of said Committee, ... ). In Baden-Wurttemberg and Bavaria, the co-existence of exclusive and combined rights of audience had led to distortions in competition. The experience of barristers with combined rights of audience was considered positive (... cf.. also the Resolution of the 87th Session of the Legal Affairs Committee of the 6th Bundestag of 9 June 1972, p. 16, 33 et seq.).

Barristers in the new Länder who were entitled to appear before the latters’ courts continued to enjoy rights of audience in all courts, even after the Treaty of Unification (Law on Barristers of 13 September 1990 ... ; Treaty of Unification, Appendix II, Chapter III, Subject Matter A, Paragraph III, No. 1 ... ). Under the Law on the Adaptation of the Administration of Justice in the Acceding Areas of 26 June 1992 ..., it was left to the new Länder to choose which of the two systems of rights of audience - exclusive or unrestricted - they preferred. The Federal legislature had no wish to give pride of place to one or the other ... Saxony, Saxony-Anhalt and Thuringia opted in favour of the system of unrestricted rights of audience, whereas Brandenburg and Mecklenburg-West Pomerania preferred exclusive rights of audience. Before the relevant Länder law had taken effect in practice, the law of 2 September 1994 on the reorganisation of the exercise of the profession of barrister and patent lawyer, contrary to a planned nation-wide freedom of choice for Länder to decide themselves as to the form of admission ... , left Section 25 of the Federal Barristers Act untouched and only the new Länder which had opted for unrestricted rights of audience were included under Section 226, subset. 2 of the Federal Barristers Act.

II.

The applicant applied in 1995 to the President of the Hamm Court of Appeal for an unrestricted right of audience to that court after having practised as a barrister for more than five years. His appeal to the Court of Lawyers of the Land of North-Rhine-Westphalia against the decision to reject his application proved unsuccessful. Like the Court of Lawyers, the Federal Court of Justice, in its decision of 18 November 1996 upholding the latter’s view, found that the legislature had not written into Section 25 of the Federal Barristers Act impugned by the applicant any disproportionately restrictive interference in his freedom to exercise his profession. The Regulations on the Exercise of the Profession (Berufsausübungsregelung) were in conformity with the Constitution ... . The system of exclusive rights of audience served the common good in so far as, after the decision of first instance, the subject matter of the proceedings when laid before a fresh barrister should be examined and judged by him uninfluenced by what had gone on before (principle of two pairs of eyes). Despite the exceptions in Section 226 subsection 2 of the Federal Barristers Act, the law did not breach Article 3 § 1 of the Basic Law either. To the extent that exceptions apply also to a part of the new Länder, this is constitutionally acceptable having regard to their weight as grounds conducive to the accession of the new Länder.

III.

In his constitutional complaint the applicant contests the breach of Article 12 § 1 and Article 3 § 1 of the Basic Law as a result of the adverse decisions of the President of the Hamm Court of Appeal, the Court of Lawyers and the Federal Court, together with sections 25 and 226 of the Federal Barristers Act. Hitherto deemed to be in conformity with the Constitution, the rules, so it is argued, have been superseded by amendments to the law on the exercise of the profession of barrister and by the evolution that has taken place in the practical relations between practitioners. They are said to lead to distortions in competition that are not only a bar to equality but also incompatible with the freedom of choice and the freedom of exercise of the profession.

It was claimed that there was a restriction on the freedom to exercise one’s profession affecting the very choice of a profession. The applicant contended that he could be admitted to the Hamm Court of Appeal Bar by abandoning his solicitor’s practice in Münster. The principle of the two pairs of eyes was not so much in the general interest as to justify the interference. Its observance was exclusively a matter of the internal organisation of a law practice. Even in Länder with the system of exclusive rights of audience it has broadly lost its validity. This was said to be the consequence of the introduction authorised in the meantime of mixed practices encompassing two or more localities in which barristers specialised and could also appear in respect of appeals before the courts of appeal. Given the great number of barristers admitted to the regional courts, those with exclusive rights of audience would always be able to find a partner. Should the legislature allow barristers with exclusive rights of audience to gain access to all the regional courts situated in the district of the court of appeal through partnerships with colleagues practising in cases of the first instance before the regional courts, it would then have to enable barristers admitted to the regional court bars to gain access to the courts of appeal. For the specialisation of barristers, what was decisive was the size of the practice and not whether they enjoyed exclusive rights of audience. Given the considerable disadvantages for barristers not admitted to the court of appeal bar, the interference was however disproportionate. A barrister not able to appear before the court of appeal seemed to be less qualified than his colleague; this in itself was a competitive disadvantage. The effect of this was particularly felt along the frontiers between Länder with different systems. For example, barristers from Hamburg or Bremen with unrestricted rights of audience were fully successful in the surrounding area where the system of exclusive rights of audience was in force.

Unequal treatment within the Federal Republic was also said to run counter to Article 3 § 1 of the Basic Law. To that extent a more stringent measure should be included in the law of the Constitution, since the diversity of legal situations affected Article 12 of the Basic Law. The legislature had no overriding reasons for this unequal treatment; in 1994, he had rather merely accepted it because no majority had emerged in favour of any alternative rule. The legislature was unable to take purchase on the principle of two-pairs-of-eyes because, had it carried weight, it could not have been confined to individual regions. Regional peculiarities could no longer be invoked as a justification. Such peculiarities might have existed in the historical development of the City Länder and the southern Länder; however, they were totally absent in the new Länder. Moreover, as early as 1972, when the unrestricted rights of audience in courts was reintroduced in the Länder of Baden-Wurttemberg and Bavaria, the legislature had considered the system of unrestricted rights of audience as objectively better attuned to legal policy and the requirements of competition.

IV.

The Federal Ministry of Justice on behalf of the Federal Government, the Lower Saxony State Chancellery, the President of the Hamm Court of Appeal, the Federal Order of Barristers, the German Bar Association and the Association of Barristers with exclusive rights of audience in the Courts of Appeal took a stand on the matter and added further detailed comment at the hearing.

They conclude and largely concur that the impugned decisions and the norm on which they are based are compatible with the Basic Law.

In a Land the legislature is entitled to take account of regional particularities resulting from the historical development of the West and from the special situation of rebuilding an effective legal system in the East.

The principle of two pairs of eyes was necessary for the administration of justice, as could be confirmed by statistics. In civil actions, the principle of the production of evidence applied. A change of barrister protected parties against possible failure to discover opportunities for an effective defence. The compulsory change in barrister provided a possibility of a further examination of the case and an improvement in its factual basis. Not having been involved in the trial proceedings, the new barrister was not under pressure to win the case or to justify himself. The system of exclusive rights of audience, so it is argued, facilitates specialisation by barristers in procedural law and substantive law, thus being conducive to a more thorough examination of the case. This specialisation, it is claimed, matches that of the Specialised Divisions of Courts of Appeal. Section 59a of the Federal Barristers Act cannot be read as being in favour of abandoning the principle of two pairs of eyes. Mixed practices of barristers with differing rights of audience had always been available. Despite the increase in the number of these so-called mixed practices, the principle of exclusive rights of audience had not been abandoned in practice. In court districts with the system of exclusive rights of audience, changeover of barristers handling cases continues to take place. Such a practice cannot be achieved in areas with unrestricted rights of audience; there is especially no way of ensuring that the appeal lawyer is equally familiar with the case-law of the appeal court. The bench also values the improved quality resulting from the ‘principle of two pairs of eyes’.

Should the system of exclusive rights of audience be abandoned, constitutional reasons would require a transitional solution. Barristers, it is claimed, would have been encouraged by the decision of the Chamber of the Constitutional Court of 13 July 1993 ... to expect the right to continue to remain valid. This discontinuation of the system of exclusive rights of audience would not allow the survival of the specialisations of barristers vested with such rights. This would have resulted in a devaluation of their legal practice, for the colleagues dealing with cases in the first instance would as a rule no longer pass on to them the representation of clients in proceedings before the court of appeal. A transitional solution would first and foremost have to take account of the fact that the great majority of barristers enjoying exclusive rights of audience did not possess a source of clients of their own among persons seeking justice. Their continued existence would depend on the development of a practice dealing with cases of first instance and general legal advice. Therefore, only a transitional arrangement laying down a deadline on the prohibition of exclusive unrestricted rights of audience

unilaterally in favour of barristers hitherto enjoying exclusive rights of audience in the court of appeal and allowing only them to appear before regional courts and courts of appeal would seem suitable. A 10-year period would be appropriate.

B.

The constitutional complaint is in essence well-founded.

The system of exclusive rights of audience as laid down in Section 25 of the Federal Barristers Act is not compatible with Article 12 § 1 of the Basic Law. There is thus no need for an examination on the basis of Article 3 § 1 of the Basic Law. The constitutional complaint is to be rejected, in so far as it is directed against the impugned decisions, as the hitherto applicable right continues to be available to the applicant.

I.

The impugned decisions and their underlying regulations limit the applicant’s exercise of his profession. A sector of professional activity is closed to him, whereas it is generally open to barristers in other Länder, while in North-Rhine Westphalia, for example, it is reserved for barristers admitted to the Court of Appeal Bar. ... At the same time, other barristers who - like the applicant - are not admitted to the Court of Appeal Bar are excluded from forensic activity in the Court of Appeal in proceedings where the presence of a barrister is mandatory.

Such legislative regulations over the exercise of a profession have been held by the Constitutional Court’s constant case-law to be admissible when they are justified on cogent grounds as being in the general interest, when the chosen means is in accord with the aim sought and when an overall weighing of the degree of the interference and the grounds serving to justify it do not exceed the limit of what is reasonable ... . The more the practitioner suffers hindrance in the exercise of a profession, all the greater has to be the weight of the general interest that the arrangement is designed to serve ... . The impugned decision does not suffice to meet these constitutional requirements.

The institution of exclusive rights of audience was originally based on a variety of concerns for the general interest. These included the legal tradition and the existence of a counterpart to the institution in civil-law procedures ... , and the advantages for the administration of justice resulting from an easier access to qualified barristers and from the furtherance of a climate of mutual trust between the Court and the barristers established in its area of jurisdiction ... . The legislature also relied on the last of these grounds to justify Section 78 of the Code of Civil Procedure, previous version, during the period when it was in force. The right of practice restricted to cases of the first instance was designed to expedite proceedings before the Civil Courts, to further trust-based co-operation between Bench and Bar and to enhance the quality of advice given by barristers thanks to a knowledge of the local habits and traditions. However, in the process of reforming the regulation of the profession of barrister, the legislature itself did not hold this aim to be defensible as a justifiable means of imposing restrictions on the right of audience to the regional court bars ... .

(a) Technological progress has prompted the legislature to cease to attach great weight to the disadvantages that might arise for the Courts as a result of the acceptance by barristers of cases from outside areas. Increased mobility brought about by improved means of transport and the emergence of modern means of communication (such as portable telephones, facsimile, laptops), together with the ability to transmit large quantities of documents to law practices and increasingly to the Courts, offers a reliable mode for contacting a barrister provided he continues to be required to have his practice in the district where he is registered. In all other jurisdictions, the fixing of dates of hearings has long been successfully achieved without recourse to locally based barristers and this is now also the case in civil matters with district and regional courts. The courts of appeal show no special features that could stand in the way of the general interest. The frequency of travel to outside hearings will depend on how much importance the client or the barrister attaches to attendance in person, the responsibility assumed by the barrister in the specific case and his ability to adjust various hearing dates to one another ... . Dates for hearings before the courts of appeal can also be fixed effectively and swiftly with barristers with unrestricted rights of audience.

(b) In civil matters before district and regional courts, the legislature has also abandoned the aim of a trust-based personal contact between barrister and judge as a requirement for the administration of justice ... . It is not clear that the viewpoint was a decisive reason in upholding exclusive rights of audience in the courts of appeal.

(c) Neither can the specialisation of barristers pleading before them be relied on to justify the system of exclusive rights of audience in the courts of appeal as being a matter of public interest. This applies to both specialisation in individual fields (bb) and a thorough acquaintance with the case-law of a particular court (aa). The weight attaching to matters referred to as being in the general interest has diminished so much in this area that they can no longer serve to justify the exclusive rights of audience in the courts of appeal. These general-interest arguments were based on circumstances and conditions that no longer exist. Moreover, the legislature has made it clear through the revised rules of procedure and organisation of the profession of barrister that these approaches no longer carry any weight.

(aa) True, a knowledge of the case-law of a given court and features peculiar to a locality may be of advantage to the client. However, such knowledge does not come into play at the appeal stage first of all, but is made much use of at the court of first instance, since it may provide a means of avoiding recourse to appeal. In any case, such circumstances were more relevant in matters dealt with by the administrative courts of the second instance which would usually reach a final decision based on the law of the Land than they were in matters falling under the jurisdiction of the civil courts. However, rights of audience in administrative appeal procedures was never restricted to a small circle of barristers possessing such a right.

(bb) In the meantime, the specialisation of barristers outside the area where they enjoy exclusive unrestricted rights of audience has become much more widespread with the support of the legislature (cf. Sets. 59 a, 59 b subset. 2 Nr. 2 and Section 59c of the Federal Barristers Act).

In so far as a specialised corpus of barristers had already developed at an early stage, this was not the result of exclusive rights of audience. First of all, specialisation in matters dealt with by the courts of appeal requires a corresponding distribution of labour in the court of appeal concerned, which was only the case of the larger courts of appeal. The views uttered by the President of the Hamm Court of Appeal do not apply uniformly to places such as Brunswick, Oldenburg, Rostock or Zweibrücken. Specialisation as a rule requires above all that barristers be able to work in large practices where the work is divided among them, thus enabling them to specialise. As a result of changes in the laws governing the barristers’ profession such large practices have grown up on a broad scale, as was to be foreseen when the Federal Barristers Act came into force in 1959. Barristers joined forces in various structures and worked across the borders of the local area of jurisdiction and those between Länder in practices comprising barristers enjoying either of the two types of rights of audience and members of other professional groups. This development clearly shows that the services of barristers specialised in various areas of the law were already in great demand at the stage of preliminary advice and first instance and not only as the result of their enjoying exclusive rights of audience in the Court of Appeal.

The only common-interest arguments that the legislature continued to view as relevant were the improved quality of legal advice and the ability to reach an independent assessment of the prospects of the success of an appeal thanks to the principle of two pairs of eyes. However, this principle and the expectations to which it gives rise do not suffice to justify the interference in barristers’ professional freedom.

(a) It is already unclear whether the legislature continues to look upon the system of exclusive rights of audience as an appropriate and necessary means of improving the administration of justice.

(aa) Granted, there are many pointers to the effect that, against the background of the sources of information then available, the legislature of 1959 saw in exclusive rights of audience a particularly suitable means of securing an administration of justice of high quality on the basis of the principle of two pairs of eyes.

The principle of exclusive rights of audience was the practice in the great majority of appeal-court districts and was such as to give the legislature the impression that, in conjunction with the strong local concentration of the capacity to conduct first-instance proceedings as per section 78 of the Code of Civil Procedure, it represented a principle of proven practical value. Decisions of appeal courts were published less frequently, so that the case-law of these courts may have increasingly tended to develop in different directions. In addition, practices were small and were not allowed to operate in more than one locality. Barristers were more dispersed and far less specialised. There were practically no specialist lawyers and no reported emergence of pools of special skills. Experience of Labour-, Financial -, Social - and Administrative jurisdictions where restrictions on rights of audience had been waived from the outset was seldom to be found.

(bb) However, it is to be doubted whether the 1994 legislature continued to abide by his assessment having regard to changes in real-life situations.

Already in 1972 the rapid and readily accepted spreading of the system of unrestricted rights of audience in Baden-Wurttemberg and Bavaria showed that the legislature did not consider that the experience so far acquired endangered the administration of justice if an amendment to the law offered a means of ending competitive pressures among barristers. However, it would appear from the legislative history prior to the authorisation of mixed practices in 1994 that there were doubts as to the suitability of exclusive rights of audience as a means of achieving the desired aims.

When preparing the Federal Barristers Act in 1959 the legislature still considered a ban on such practices as an additional measure indispensable for the preservation of the principle of two pairs of eyes (cf. In extenso Report of the 15th Session of the Legal Affairs Committee of the 3rd German Bundestag of 27 March 1958, p. 4 et seq. Such a ban could not be executed at this stage (cf. In extenso Report of the 33rd Session of the Legal Affairs Committee of the 3rd German Bundestag of 6 November 1958, p. 14 et seq.; Report of the Plenary Session of the German Bundestag of 1989 February 1959, 3rd WP, 62nd Session, p. 3359; Report of the Plenary Session of the German Bundestag of 18 March 1959, 3rd WP, 66th Session, p. 3532); however, practices operating in more than one locality were not viewed as admissible ... . A relevant connection between the forms of law firms, the restricted capacity to conduct proceedings before the courts of first instance and the exclusive right of audience to the appeals courts also featured prominently in the Report of the Commission on Deregulation of 15 March 1991 (cf. p. 109 of the Report).

It was only in 1994 that the legislature reacted with section 59 of the Federal Barristers Act to the changes that had in fact taken place and to the case-law of the Federal Court that had moved in a similar direction. At the same time, it abandoned linkage of the capacity to conduct proceedings and the nation-wide professional localisation for civil proceedings before the Regional and Family Courts (Section 78 of the Code of Civil Procedure in the wording of Section 3, Nr. 1 BRNOG). Last but not least, doubt was occasionally expressed in the debates about the amendment as to whether the principle of two pairs of eyes required the existence of a system based on exclusive rights of audience (cf. ... the Report of the 106th Session of the Legal Affairs Committee of the 12th German Bundestag of 12 January 1994, p. 28 about talks at the Federal Ministry of Justice).

(cc) Further, In Section 1 of the First Law on the amendment of the Law on the Implementation of the Directive of the Council of the European Communities of 22 March 1977 on greater flexibility of the practical exercise of their services by barristers of 14 March 1990 (... hereinafter referred to as the...), the legislature found another means of compulsorily adhering to the principle of two pairs of eyes without the need for exclusive rights of audience ... . According to the third sentence of Section 3 § 1 of the Law on the Exercise of Barristers’ Services, barristers from member States of the European Communities are entitled to appear before the civil chambers of appeal courts even without exclusive rights of audience according to section 25 of the Federal Barristers Act, provided however that it has been ascertained that such barristers have not acted as full legal representatives in the initial proceedings.

Already in 1990, the legislature had thus demonstrated that there was an alternative and less demanding way of ensuring the free exercise of the profession and of implementing the principle of two pairs of eyes, merely by prescribing a changeover in staff from one instance to the other. This solution, which was favourable to barristers from EU member States, failed to obtain majority support from barristers authorised to practise in Germany during the debates on the amendment of sections. 25 and 226 of the Federal Barristers Act (cf. Verbatim Record of the 106th Session of the Legal Affairs Committee of the 12th German Bundestag of 12 January 1994, p. 28; the matter was not taken up again later), although the system of exclusive rights of audience is less conducive to the observance of the principle of two pairs of eyes. Thereafter, the legislature, contrary to what was laid down in Section 3 of the Law on the Exercise of Barristers’ Services (henceforth section 27.1 of the Law on the Professional Activities of European Barristers in Germany), has ceased to consider the changeover of staff as indispensable.

(dd) It Is consequently to be noted that, overall since 1990, the legislature has increasingly and clearly distanced himself from ‘its initial assessment that the system of exclusive rights of audience was on the whole more necessary for the administration of justice than unrestricted rights of audience.

The basis for this clearly lay in the recognition that grew up in a number of Länder and in other branches of the judiciary of the capacity of the administration of justice to function on the basis of a system of unrestricted rights of audience, as well as in advantages that accrued to the administration of justice, especially from the clients’ standpoint. Foremost among these advantages was the special relationship of trust between barrister and client underpinned not only by the knowledge of the case-file in a specific case, but also by long-standing advice and successful co-operation concerning all the legal business involving the client. For a client who has won his case in the first instance, a mandatory change of barrister can be disturbing. Although the consequences of such a change may be offset to some extent by bringing into the appeal proceedings the barrister already fully conversant with the case when tried in the first instance, additional costs would be entailed.

Hence the marked reticence shown by the legislature in the 1992 Administration of Justice Revision Act and its failure to decide itself whether the administration of justice would be better served by a system of exclusive rights of audience or a system of unrestricted rights of audience ... . The idea was first of all to offer the new Länder an opportunity of deciding according to their own preferences. A corresponding freedom of choice was then thrown open to all the Länder in the initial draft reform of 1994 ... . This was to make clear the fact that, under Federal legislation, neither unrestricted nor exclusive rights of audience were to enjoy precedence before the Appeal Court. The Legal Affairs Committee of the German Bundestag rallied to this view of the law at its hearing of 1 December 1993 ... .

(b) These doubts in the legislature’s mind as to the suitability and the necessity of the system of exclusive rights of audience as a means of improving the quality of the administration of justice were strengthened by the body of experience acquired in the Federal Republic. According to Section 25 of the Federal Barristers Act, exclusive rights of audience are no longer required for the achievement of the desired aims and are in breach of Article 12 § 1 of the Basic Law.

Neither have any drawbacks emerged in the administration of justice when, further to the introduction of unrestricted rights of audience, the client has himself decided whether he wishes a change of barrister for the appeal proceedings and himself determines what he deems to be the relevant criteria, such as geographical proximity, specialisation and size of the law firm, familiarity with the case-law of the competent chamber of the court or perhaps merely dissatisfaction with his previous legal representative.

The principle is clearly not a requirement for the formation of a body of specialised barristers which the association of barristers enjoying exclusive rights of audience, together with the President of the Hamm Appeal Court, consider to be in the common interest. There are barristers specialising in Labour -, Financial -, Social - and Administrative law and who appear before all levels of jurisdiction in those sectors. Specialist barristers also work on an appreciable scale in practices which associates with rights of audience in appeal courts are allowed to join. It is thus irrelevant whether the rights of audience in the particular sector are exclusive or unrestricted. In certain appeal courts barristers enjoying exclusive rights of audience belong without exception to mixed practices with some members specialising in specific areas in which they are particularly qualified. In addition, in the new Länder with the system of exclusive rights of audience, no law firms dealing exclusively in appeal court proceedings have so far been formed. No need for barristers specialising in appeal matters has been felt, as was already clearly the case at an early stage in the City Länder and other places with unrestricted rights of audience.

Significant advantages that might flow from the system of exclusive rights of audience are not to be seen. True, the figures that have been presented do reveal deviations in the frequency and the success of appeals as well as fluctuations over the years and in results as between individual Länder. However, since the performance of barristers is expressed in terms of numbers and results of judgments, no clear view of the pros and cons of either system can be obtained. Judgments handed down by independent courts can hardly be attributed to the preparatory work by barristers appearing before appeal courts or to the applicable right of audience.

True, judges have always favoured the system of exclusive rights of audience since it facilitates their task. On the other hand, clients gain a greater freedom of choice when barristers enjoy unrestricted rights of audience. Evidence that they often have no wish to change barristers is to be seen in a long-standing avoidance of the rule restricting admission to a single bar. Restrictions on the exercise of the profession must take account of the fact that above all else barristers have a duty to their clients as an independent adviser and representative ... . Restrictions on the free exercise of their activity by barristers cannot be required solely on the ground that they are looked upon as objectively useful by the appeal courts and judges in the districts where the system of exclusive rights of audience holds sway.

If, over the course of the years, the legislature restricts the freedom to exercise the profession only in a part of Germany without this entailing either greater drawbacks where greater freedom prevails or significant advantages where that freedom is more restricted, then it is clear that the restrictions were not needed.

II.

Although section 25 of the Federal Barristers Act is not in tune with Article 12 § 1 of the Basic Law, the prescription is to continue to abide by the measures clearly arising out of the operative part until 30 June 2002. The barristers concerned in the Länder that are not identified in Section 226.2 of the Federal Barristers Act need a certain period of adjustment.

The time-scale first of all serves to help barristers appearing before appeal courts on the basis of the system of exclusive rights of audience to prepare to obtain admission to the relevant district and regional courts and to establish contacts with fellow-professionals. Many of them will also need to consider the matter of the siting of their practices for all or some of their partners. Planning and implementation will require appreciable time. For barristers who have been involved in first-instance proceedings for over five years (Section 20.1, Nr. 4 of the Federal Barristers Act) the question arises of their concurrent admission to the appeal-court bar. Clients with their roots in a local community situated in the larger Länder will be able to use the period of transition in order to decide whether they wish to consider one or other of the barristers who have served them before the courts of first and second instance as possible permanent legal representatives for the future.

Since it was argued in the proceedings that barristers enjoying exclusive rights of audience in appeals courts have so far been kept at full stretch by their forensic activity, it would then seem questionable to allow them throughout the transitional phase to take on the additional work resulting from their rights of audience to the courts of first instance with the shift of the centre of gravity of their activity this would entail, notwithstanding that the unconstitutional nature of the norms bar any new granting of exclusive rights of audience. The better barristers so far appearing exclusively before courts of second instance succeed in their reorientation, the more energy they will have to devote to first-instance cases and to advising new clients, so that cases still to be pleaded by them before the appeal courts could no longer continue to receive the same degree of care as hitherto. Since, however, it should not be overlooked that the reorientation will entail greater difficulties for second-instance barristers than for those who have so far acted exclusively at first-instance level, it is proper to stagger the opening of the system of unrestricted rights of audience. Barristers who have so far enjoyed exclusive rights of audience in the appeal courts can have additional rights of audience in courts of first instance as from 1 January 2002, whereas barristers who have so far appeared exclusively at first instance will be able to be accredited to the appeal courts at the earliest on 1 July 2002.

III.

As a consequence of the transitional regulations, the applicant will also have to wait until mid 2002 in order to achieve his aim. The constitutional complaint is thus rejected in so far as it is directed against the decisions of the Federal Court, the Court of Lawyers and ruling of the President of the Hamm Appeal Court. These decisions remain valid for the past. The applicant will have to lodge a fresh application.

IV.

Inasmuch as the constitutional complaint succeeded as regards the norm underpinning the decisions, it appears appropriate to award the applicant the necessary costs (Section 34 a, subsections 2 and 3 of the Federal Constitutional Court Act).”

The system of exclusive rights of audience at courts of appeal applied in seven of the sixteen Länder.

Statistical material on lawyers with such a restricted right of audience is available for the Länder Lower Saxony (for the year 2000) and for Brandenburg, Hesse, Mecklenburg-West Pomerania, North-Rhine Westphalia, Rhineland-Palatinate and Schleswig Holstein (March/April 2002):

In Lower Saxony, ninety-two lawyers had restricted rights of audience at the Celle Court of Appeal; twenty (24 %) of them worked on their own or with other lawyers specialised in appeals matters and seventy worked in mixed partnerships. All lawyers with restricted rights of audience at the Braunschweig Court of Appeal and the Oldenburg Court of Appeal worked in mixed partnerships.

In Brandenburg, seventy-two lawyers had restricted rights of audience at courts of appeal, thirty (42%) worked in regional partnerships, thirty-two (44 %) in mixed partnerships and ten lawyers (14%) worked on their own.

In Hesse, all lawyers with a restricted right of audience at the Frankfurt/Main Court of Appeal worked in mixed partnerships. Of the sixty-five lawyers with a restricted right of audience at the Kassel Court of Appeal, fifty-nine worked in mixed partnerships and six in an individual practice.

In Mecklenburg-West Pomerania, two of the 103 lawyers with restricted rights of audience at the Rostock Court of Appeal did not work in mixed partnerships.

In North-Rhine Westphalia, 330 lawyers had restricted rights of audience at the Düsseldorf Court of Appeal. Ninety-five of them worked as single lawyers or in practices with other appeals lawyers. The majority were titular or syndicate lawyers not forensically active, or had merged with mixed partnerships. Most of the lawyers with restricted rights of audience at the Cologne Court of Appeal worked in mixed partnerships. No update information was available for the situation with regard to lawyers with restricted rights of audience at the Hamm Court of Appeal.

In Rhineland-Palatinate, sixty-two lawyers had restricted rights of audience at the Koblenz Court of Appeal and the Zweibrücken Court of Appeal. Twenty-five worked in practices with other lawyers specialised in appeals matters, while thirty-seven worked in mixed partnerships.

In Schleswig-Holstein, six of the thirty-eight lawyers with restricted rights of audience at the Schleswig Court of Appeal worked in mixed partnerships.

With regard to Länder where a combined right of audience already applied in the past, no statistical information on the number of lawyers specialised in appeals matters is available.

Proceedings before the Federal Constitutional Court

According to Article 93 § 1 (4a) of the Basic Law, the Federal Constitutional Court rules 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. 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 freedom of profession, i. e. the right to exercise the profession of your choice.

Ensuing legislation concerning the legal representation before courts of appeal

On 23 July 2002, the legislature changed the law governing the legal representation before courts of appeal (Gesetz zur Änderung des Rechts der Vertretung durch Rechtsanwälte vor dem Oberlandesgericht), namely Section 78 of the German Code of Civil Procedure. While before, lawyers admitted to the bar of a certain court of appeal could only plead before that court of appeal, they may now plead before any German court of appeal, regardless of which bar they are admitted to.


CASE OF MANOLOV AND RACHEVA-MANOLOVA v. BULGARIA

Remainder inadmissible;Violation of P1-1;Pecuniary damage -award;Non-pecuniary damage - award

Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Volodymyr Butkevych

The applicants are husband and wife. They were born in 1920 and 1930 respectively and live in Sofia.

In 1982 the first applicant, who was an artist, purchased from the State through the Union of Bulgarian Artists a workshop of 212 square metres in Sofia. It appears that the second applicant, being the first applicant’s spouse, acquired a share in the property. The price, 17,680 “old” Bulgarian levs (BGL), was determined in accordance with the relevant legislation and paid by the first applicant. At the relevant time this sum was the equivalent of not less than 75 average monthly salaries.

In the following years the applicants made substantial alterations to the property. The applicants used the property as a workshop and as their home.

The property, located in a building constructed not later than 1946, had originally consisted of three separate premises which had become State property in 1976 and 1978, when a Mr A. and a Ms P., the owners, had each sold their premises to the State, through the Union of Bulgarian Artists. The transaction had been executed pursuant to Council of Ministers Decree no. 60 of 1975, at prices determined by the relevant regulations (see paragraph 19 below).

In 1992 the heirs of Mr A. and Mrs P. reimbursed the price their families had received in 1976 and 1978 respectively and, claiming that they had thereby restored their title to the respective parts of the property by virtue of the Restitution of Stores, Workshops and Storage Houses Act 1991 (“the 1991 Act”), filed a rei vindicatio action against the applicants.

The proceedings went through three levels of jurisdiction and ended with a final judgment of the Supreme Court of Cassation of 13 May 1997 ordering the applicants to vacate the property.

The courts noted that in accordance with the 1991 Act the former owners of real estate sold to the State under Decree no. 60 of 1975 could automatically restore their title by reimbursing the price they had received from the State. The restored owners were entitled to claim their property from any third person, even where the latter had acquired it by means of a valid transaction. The courts found that in the case at hand the plaintiffs had reimbursed the price their families had received in 1976 and 1978 and had restored their title. Under the 1991 Act the applicants were no longer the owners and had to vacate the premises. The fact that they had purchased the property in 1982 by means of a valid transaction was immaterial.

The relevant court judgments in the 1992-1997 proceedings, as well as the applicants’ notary deed, described the property as covering approximately 212 square metres on three levels: (i) basement, used as a workshop (75.24 square metres), (ii) art gallery (53.37 square metres) and (iii) upper level (83.24 square metres).

On 28 April 1999 the applicants were evicted from the property. They moved into a room of 12 square metres belonging to a friend of theirs, where they lived until 2001.

The applicants asked the Sofia municipality to provide them with a municipal flat for rent. The municipality agreed but proposed to the applicants, in April 2000, a squatted flat and later on a flat located below ground level, which the applicants refused as being unsuitable for occupation. Eventually, in December 2002 the applicants were granted the tenancy of a two-room municipal flat at regulated prices.

On an unspecified date in 1997 the applicants brought an action under section 2 § 1 of the 1991 Act, seeking compensation for improvements in the property from the heirs of Mr A. and Mrs P. By a judgment of 10 July 2000 the Sofia City Court awarded the applicants 34,462 Bulgarian levs (BGN) (the equivalent of approximately EUR 17,500) apparently on the basis of up-to-date market prices.

On 18 March 2003 this judgment was quashed by the Supreme Court of Cassation which referred the case for renewed examination indicating that the compensation should be in the amount of the expenses disbursed by the applicants for the reconstruction of their property, calculated with reference to prices as in force at the relevant time – the 1970s.

Thereafter the applicants abandoned the proceedings as it became clear that as a result of the devaluation of the Bulgarian currency, inflation and the Bulgarian courts’ practice of refusing revalorisation they could only hope to obtain a token compensation. The proceedings were terminated on an unspecified date in 2004.

By virtue of Council of Ministers Decree no. 60 of 1975, the State or municipal enterprises were authorised to “buy up”, from the individuals who owned them, stores, workshops, storage houses or similar premises. The price was fixed by administrative decision on the basis of legislation. While the Decree provided that the owner should propose that his or her property be purchased, in reality the owners were pressured to sell their property under the Communist Party’s policy of limiting private economic activity (see Supreme Court judgment no. 270 of 14 February 1995 in case no. 4/94, noting, obiter, that the individuals concerned had been forced to sell their shop). This policy had been implemented, among other means, via the Citizens’ Property Act 1973, which limited to a minimum private ownership of premises for economic activity.

In December 1991 Parliament adopted the Restitution of Stores, Workshops and Storage Houses Act 1991, which provided that the former owners of real property sold to the State under Decree no. 60 of 1975 could restore their title automatically by reimbursing the price they had received within one year of the Act’s entry into force (section 1 of the Act). The restored owners were entitled to claim their property from any third person, even where the latter had acquired it by means of a valid transaction (see also Supreme Court judgment no.1758 of 2.02.1994 in case no. 430/93).

Section 2 § 1 of the 1991 Act entitles persons in the applicants’ position to seek compensation for improvements they have made to the property. They can recover the sums spent for the improvements, not an amount representing the resulting value increase (see Supreme Court judgment no. 945 of 22.10.1993 in case no. 390/93). In practice, however, these claims only lead to recovery of insignificant amounts owing to inflation, which in the 1990s depreciated the national currency by a factor of several hundred, and as a result of the Bulgarian courts’ practice of refusing revalorisation. The 1991 Act does not provide for recovery by persons in the applicants’ position of the price they paid for the property. Theoretically, they could bring proceedings for unjust enrichment under section 55 of the Contracts and Obligations Act against the State or the enterprise or institution which had received reimbursement from the restored owners under section 1 of the Act but there is no reported case-law confirming this possibility.


The applicant, Mr James Dewayne Nivette, is an American national, born in 1942 and currently in custody in Strasbourg-Elsau Prison. He was represented before the Court by Mr D.S. Bergmann, of the Colmar Bar.

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

On 18 November 1997 the Sacramento Municipal Court (California) issued an international warrant for the arrest of the applicant, who was suspected of having murdered his girlfriend on 16 November 1997.

On 20 November 1997 the applicant was arrested at Munster (France) and taken into custody pending extradition proceedings.

On 22 December 1997 the United States authorities filed an extradition request with the French Ministry of Foreign Affairs.

On 29 January 1998 the Indictment Division of the Colmar Court of Appeal ruled in favour of extraditing the applicant provided that the United States authorities gave the French government an assurance that they would neither seek nor apply the death penalty. It referred expressly to the terms of a written declaration made by the Sacramento County District Attorney on 27 January 1998, which stated:

“... under California law ..., I have the exclusive right to determine whether criminal charges will be filed against any particular defendant, and ... what the charges will be. ...

In the case of James Dewayne Nivette, I have been advised by my deputies and agree that no ‘special circumstance’ is applicable ... This affidavit may be deemed a commitment by my office to not seek the death penalty against James Dewayne Nivette.”

The Indictment Division of the Colmar Court of Appeal pointed out that, while the application of the death penalty to a person whose extradition had been granted by the French government would be contrary to French public policy under the Law of 9 October 1981 abolishing the death penalty and Protocol No. 6 to the European Convention on Human Rights, the same was not true of life imprisonment without the possibility of parole. The court also found that the question whether a limitation period applied to the crime (crime) committed did not arise because, even in France, the ten-year period had only just begun.

Lastly, it found that, although the applicant had claimed to be a French national at the hearing, it could not be seriously disputed that he had American nationality only and so it declined to seek a preliminary ruling on that issue.

On 12 May 1998 the Criminal Division of the Court of Cassation dismissed the applicant’s appeal on points of law against the Court of Appeal’s decision. It held that the ruling in favour of extradition, together with its proviso, was in accordance with domestic law. It declined, however, to rule on the grounds of appeal relating to nationality and the death-row phenomenon, taking the view that they amounted to criticisms of some of the reasons given in the Court of Appeal’s judgment and were therefore inadmissible.

On 25 September 1998 the applicant applied to the Colmar District Court for a declaration of nationality.

On 7 September 1999, at the French government’s request, further guarantees were provided by the Sacramento County District Attorney, who stated that:

(a) as District Attorney, she was authorised by law to bind the State of California by her decisions and so the undertaking she had given was binding both on her successors and on the State of California;

(b) her declaration amounted to a commitment and an assurance by the State of California that the death penalty would not be sought or applied against Mr Nivette at any stage in the prosecution or the criminal proceedings instituted against him;

(c) under section 190.2 of the California Penal Code a death sentence for murder could be passed only if at least one of twenty-one special circumstances listed in the section applied;

(d) the laws of the State of California made it legally impossible for the death penalty to be imposed unless a special circumstance was charged by the prosecuting authorities and upheld by the trial court;

(e) the District Attorney alone was entitled to charge a special circumstance; no special circumstance would be charged in this case and therefore no court would be able to impose the death penalty on Mr Nivette;

(f) even if the understanding of the facts in the case were to change in the future, her decision not to seek the death penalty was irrevocable. Even where a special circumstance existed, the District Attorney had a legal right not to charge it and she would not do so in this case even if a special circumstance became apparent at a later stage; it was consequently impossible for the death penalty to be imposed.

That declaration was made “under penalty of perjury”.

On 17 December 1998 the United States embassy in Paris forwarded to the French government assurances made by the federal government.

On 21 October 1999 the French Prime Minister issued an extradition order; the applicant appealed to the Conseil d’Etat.

On 6 November 2000 the Conseil d’Etat held as follows:

“The death penalty was abolished in France by the Law of 9 October 1981. Under Article 1 of Protocol No. 6 to the Convention for the Protection of Human Rights and Fundamental Freedoms, which was incorporated into the domestic legal order following its ratification ..., ‘The death penalty shall be abolished. No one shall be condemned to such penalty or executed’. Applying the death penalty to a person whose extradition has been granted by the French government would contravene French public policy. Consequently, if any of the crimes for which extradition is sought from the French authorities is punishable by death under the law of the requesting State, extradition in respect of that crime may legally be granted only on condition that the requesting State gives sufficient assurances that the death penalty will not be imposed or will not be executed. On the other hand, extradition of a person liable to serve a life sentence without any possibility of early release is not contrary to French public policy or Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

The government of the United States’ request for the extradition of Mr Nivette is based on an act of murder. Under the criminal-law provisions that apply in California, which is the State whose courts have jurisdiction in the case, an accused found guilty of murder is liable to the death penalty.

On 29 January 1998 the Indictment Division of the Colmar Court of Appeal ruled in favour of Mr Nivette’s extradition provided that the relevant United States authorities gave assurances to the French government that, even if the death penalty was imposed, it would not be sought or applied.

Under the impugned order of 21 October 1999, the French government acceded to the American authorities’ request for the applicant’s extradition provided that the death penalty was not sought, imposed or executed. In a diplomatic note of 17 December 1998, the United States embassy made known to the French government the United States government’s assurance that, if Mr Nivette’s extradition was granted, the death penalty would not be imposed or carried out. The United States authorities also conveyed to the French authorities the undertaking made on behalf of the State of California by the District Attorney of Sacramento County – where Mr Nivette would stand trial – that the relevant prosecuting authority would not apply for the death penalty to be imposed on the applicant, even if new facts were uncovered that could amount to special circumstances. In an affidavit the Sacramento County District Attorney gave a formal assurance that the death penalty could not be imposed unless a special circumstance was charged by the prosecuting authorities. Under these circumstances, the applicant is not justified in maintaining that the impugned order is not attended by adequate safeguards and that his extradition would contravene French public policy.

Contrary to the applicant’s allegations, the United States’ legal system respects individuals’ fundamental rights and freedoms as required by the general principles of extradition law. The impugned order is therefore not in breach of Article 6 § 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

Mr Nivette maintained that he was a French national but provided no evidence to support that assertion. In the absence of any serious dispute on this subject, there is no reason to seek a preliminary ruling from the court competent to determine nationality issues.

It follows that Mr Nivette is not justified in seeking to have the impugned order quashed ...”


CASE OF KYRIAKIDIS AND KYRIAKIDOU v. CYPRUS

Violation of Art. 6-1 (length);Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial awards;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

The applicants were born in 1952 and 1964 respectively and live in Nicosia.

On 22 January 1998 the applicants filed a civil action before the District Court of Nicosia against the Bank of Cyprus Ltd concerning a deposit they had allegedly made to the latter in 1993. The applicants stated that, before filing the action, they had complained to the police and to the Attorney-General of the Republic, who they maintained, refused to investigate their case.

The pleadings were completed on 16 November 1998 following five adjournments at the defendant’s request, with the applicants’ consent, in relation to the filing of its defence.

From 16 November 1998 until 24 February 2003 the case was adjourned four times at the defendant’s request and with the applicants’ consent, twice at the parties’ and once at the applicant’s request. Further, the court adjourned the case six times mainly for the purpose of dealing with other civil actions. For example the case was adjourned from 30 April 1999 until 7 October 1999 and then to 1 February 2000; from November 2000 to 26 March 2001 and from 24 September 2001 until 28 February 2002 for directions. Within this period, the court also dealt with an interlocutory application filed by the defendant in the proceedings.

The hearing of the case commenced on 24 February 2003 and concluded on 22 April 2003. Within this period a total of four hearing sessions were held and an interim decision was delivered.

On 23 May 2003 the district court delivered its judgment dismissing the applicants’ action with costs to be paid by them.

Article 30 (2) of the Cypriot Constitution in so far as relevant provides as follows:

(2) “In the determination of his civil rights and obligations ..., every person is entitled to a ... hearing within a reasonable time by [a] ... court ...”.

On 30 July 2001 the Supreme Court adopted “The Rule of Judicial Practice” which provides as follows:

“During the Court’s meeting of 3 July 2001 and before the Court proceeds with its judicial work, the President announced the issuing of the following Judicial Rule of practice”.

The President of the Supreme Court Mr G.M. Pikis stated as follows:

“With the unanimous agreement of all the Judges of the Supreme Court, the following Rule of Practice is issued:

It is acknowledged that the duty for the hearing of cases within reasonable time is the individual duty of the trial judge and a collective duty of the judicial function. The establishment of rules for conducting a trial within reasonable time and the supervision of the procedures towards preventing delays is the responsibility of the Supreme Court. Its performance must be regulated in a way which secures, not only in advance but also during the course of the trial of cases, that the safeguards set by Article 30.2 of the Constitution and the principles governing the proper administration of Justice, as set out in circulars of the Supreme Court, are complied with. For achieving this purpose, the present Rule of Practice is adopted.

Whenever it comes within the knowledge of the Supreme Court (either through the Registries or following representations made by any person having an interest in the trial of the case without delay) that the trial of the case is being delayed, or it appears from the arrangements made – in respect of its trial– that it is possible that the trial be delayed, or where it appears that the hearing is not conducted uninterruptedly as determined by the circulars of the Supreme Court, the Supreme Court may issue directions for preventing delays in the hearing of the case and for the uninterrupted trial of the case as it deems fit. The responsibility of observing the conduct of cases undergoing trial, for the purpose of briefing the Supreme Court of delays noted or envisaged in the trial of civil and criminal cases, shall be vested with the Registrar, who will serve at the Supreme Court. The gathering of information on this matter shall be regulated by the Chief Registrar in due course”.


Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient

C. Russo;John Freeland;N. Valticos;R. Pekkanen

Mr Giancarlo Lombardo, a former judge, lived in Rome until his death. The facts established by the Commission pursuant to Article 31 para. 1 (art. 31-1) of the Convention are as follows (see paragraphs 23-35 of its report):

"23. As the pensions of public servants and judges are not indexed in Italy, successive adjustments produced a situation in which the amount of pension paid by the State to retired judges having the same grade and with the same number of years of service but having retired at different dates varied considerably, in a way which the applicant considered to be unjustified.

Consequently, at the same time as a number of other retired judges, on 11 November 1980, the applicant appealed to the Italian Court of Audit against a decree of the Ministry of Justice rejecting his application for the amount of his pension to be increased; he argued that the provisions of the legislation on which the disparity of treatment was based were unconstitutional.

On 18 November 1980 the secretariat of the Court of Audit asked the Ministry of Justice to forward the applicant’s file, which was done on 5 December 1980.

On 31 December 1980 the file was sent to the principal public prosecutor attached to the Court of Audit, so that he could investigate the case and formulate his submissions. These submissions were added to the file on 19 January 1982.

On 7 June 1982 the principal public prosecutor, considering that the case raised questions of principle, asked for it to be examined by the combined divisions of the Court of Audit.

Subsequently, examination of the appeal was adjourned pending the outcome of an appeal to the combined divisions of the Court of Audit entered by the principal public prosecutor on 5 July 1982 against a decision of the division having jurisdiction over pensions, given in an analogous case.

These appeal proceedings proved to be lengthy. At the first hearing, arranged to take place on 6 October 1982, a first objection of unconstitutionality was raised. The combined divisions of the Court of Audit held that the objection was not manifestly ill-founded and, in decision (ordinanza) no. 73 of the same date, referred the matter to the Constitutional Court.

The Constitutional Court gave its decision in a judgment filed on 7 March 1984.

The case was again submitted to the combined divisions of the Court of Audit after a request to that effect had been made by the avvocato dello Stato (counsel representing the State) on 7 January 1985. A hearing was arranged for 5 June 1985. At that hearing a second objection of unconstitutionality was raised. The Court of Audit held that the second objection was not manifestly ill-founded and once again referred the matter to the Constitutional Court in decision no. 104 of the same date.

The file was sent to the Constitutional Court on 18 September 1985. The Constitutional Court arranged for the objection of unconstitutionality to be examined at a hearing on 21 April 1988. Its judgment was transmitted to the combined divisions of the Court of Audit on 23 June 1988.

The case was due to be heard by the combined divisions of the Court of Audit on 12 October 1988 but had to be adjourned by the court until 27 October 1988, following a strike by its staff. On that date the Court of Audit referred the case to the relevant division. Its decision was filed with the registry on 14 November 1988.

The relevant decision arranged for this case and the numerous others pending, including the applicant’s, to be heard on 22 February 1989.

In a judgment dated 13 March 1989, filed with the registry on 20 March, it partially upheld the applicant’s appeal and ordered the readjustment of his pension, re- evaluation of the sums due and payment of interest on those sums."

On 17 July 1989 the principal public prosecutor communicated that judgment to the Minister of Justice in order for him to arrange for its execution.


The applicant, Mr Markku Kaipila, is a Finnish national who was born in 1959 and lives in Vammala. He is represented before the Court by Mr Pirkka Lappalainen, a lawyer practising in Nokia. The Government are represented by their Agent, Mr Arto Kosonen, Director in the Ministry for Foreign Affairs.

The facts of the case, as submitted by the parties and as they appear from the documents, may be summarised as follows.

On 11 January 1998 the chief physician at the health care centre referred the applicant for observation (tarkkailulähete, observationsremiss). He was admitted to the local hospital on the same day. He however left the hospital in the evening.

On 14 January 1998 a physician at the psychiatric clinic of the same hospital referred the applicant anew for observation.

On 16 January 1998 another physician at the hospital issued a medical statement finding that the conditions for involuntary treatment were met (tarkkailulausunto, observationsutlåtande).

Later that day the applicant was committed to involuntary psychiatric treatment (hoito tahdosta riippumatta, vård oberoende av patientens vilja) by a decision of the chief physician, X, of the psychiatric clinic at the local hospital. According to the decision, the applicant was in need of treatment for a mental illness, which if not treated would considerably worsen or severely endanger his health or safety or the health or safety of others. No other mental health services were considered applicable or adequate.

On 24 January 1998 the applicant left the hospital without authorisation. As the police were unable to find him, he was discharged from the hospital on 4 February 1998.

On 28 January 1998 the applicant, represented by counsel, appealed against the decision to commit him to treatment to the then County Administrative Court (lääninoikeus, länsrätten) of Turku and Pori, arguing in essence that he was not mentally ill. Nor was he a danger to himself or others. He did not request an oral hearing. The next day the court requested X to produce a fresh medical opinion and other documents, which were subsequently communicated to the applicant. In his submission of 27 February 1998 the applicant, represented by counsel, considered the findings in the medical opinion unfounded and unproven. He did not request a hearing at this point, either.

On 19 March 1998 the County Administrative Court rejected the appeal, finding that the applicant’s mental state at the time of the impugned decision had justified the involuntary psychiatric treatment. It granted him cost-free proceedings and free legal assistance. It did not hold an oral hearing of its own motion.

The applicant appealed further to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen), requesting an oral hearing during which he and the doctors who had treated him should be heard. He contested the diagnosis on which his detention had been based.

On 12 November 1998 the Supreme Administrative Court, having received X’s submission and communicated it to the applicant, rejected the appeal. It refused the request for a hearing as unnecessary as it found that the case turned on an assessment of medical evidence.

On 19 February 1998 the applicant was charged with, inter alia, aggravated drunken driving, committed on 12 November 1997. The District Court (käräjäoikeus, tingsrätten) of Ikaalinen granted him cost-free proceedings but rejected the requested free legal assistance. On 24 February 1998 he was convicted as charged and sentenced to three months’ imprisonment.

The applicant appealed, claiming that he had driven the vehicle under emergency conditions escaping a violent attack by a third person. On 11 September 1998 the Turku Court of Appeal (hovioikeus, hovrätten) rejected the appeal.

The applicant applied to the Supreme Court (korkein oikeus, högsta domstolen) for leave to appeal, claiming that the presiding judge in the District Court had not taken into account any of his arguments concerning the alleged act of emergency and that the judge had not allowed him to put forward any arguments for his defence. He also claimed that his representative, who had not been present at the District Court hearing but merely drafted his writ of appeal to the Court of Appeal, had not been able to comment on the judge’s behaviour in the writ of appeal as he was reluctant to raise any unpleasant issues at a court where he worked daily as a representative. On 8 December 1998 the Supreme Court, having granted the applicant free legal assistance, refused leave to appeal.

The Mental Health Act (mielenterveyslaki, mentalvårdslagen; 1116/1990) provides that involuntary treatment in a psychiatric hospital can be ordered only if the adult patient is diagnosed as mentally ill and needs treatment for the mental illness which, if untreated, would considerably worsen or severely endanger his or her health or safety or the health or safety of others and if other mental health services are inapplicable or inadequate (section 8).

For the purposes of establishing whether these conditions are met, the patient may be admitted to hospital for observation. Prior to such a referral, a physician must examine the patient and issue a written and reasoned referral for observation (section 9).

The physician in charge of the observation shall produce a written statement no later than four days after the admission of the patient. It shall include a well-founded opinion on whether the conditions are met for ordering the patient to undergo involuntary treatment. If those conditions cease to exist during the observation period, the observation shall be discontinued immediately and the patient shall be discharged if he or she so wishes (section 10).

The referral for observation and the observation are two separate measures which are taken independently of one another. Further, the doctor deciding on admission for observation is not bound by the referral for observation but must independently assess whether the conditions for ordering the patient to undergo treatment are likely to be met.

The patient’s opinion shall be found out before he or she is ordered to undergo treatment. The relevant decision is made by the chief physician in charge of psychiatric care. It must be reasoned and be in writing, it must be based on the referral for observation, the statement on observation and the case history, and it must be produced no later than four days after the admission for observation (section 11).

Accordingly, there are at least three doctors involved in the process.

The order for treatment can be appealed to the County Administrative Board. A further appeal lies to the Supreme Administrative Court.

The Administrative Judicial Procedure Act (hallintolainkäyttölaki, förvaltningsprocesslagen; 586/1996) provides that an oral hearing shall be conducted when necessary for the purposes of establishing the facts of the case. The parties, witnesses and experts, inter alia, may be heard and other evidence received in the hearing. The hearing may be limited to only a part of the matter, to clarify the opinions of the parties or to receive oral evidence, or in another comparable manner (section 37).

An administrative court shall hold an oral hearing if a private party so requests. The same applies to the Supreme Administrative Court where it is considering an appeal against the decision of an administrative authority. A hearing need not be held if the claim is dismissed without considering its merits or immediately rejected or if an oral hearing is manifestly unnecessary in view of the nature of the matter or for any other reason. If a party requests an oral hearing, he or she shall state why it is necessary and what evidence will be presented in the hearing (section 38).


András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria

The applicants are Turkish nationals and at the time of lodging their applications they were serving their prison sentences in various establishments. The dates of introduction of the applications appear in the table below. The names and dates of birth of the applicants, as well as the names of their representatives appear in the appendix.

All of the applicants were found guilty of breaching prison order by decisions of the respective disciplinary boards of prisons in which they are held. Pursuant to the Regulations on the administration of penitentiary institutions and the execution of sentences, various types of disciplinary sanctions were imposed on them. Their appeal requests were rejected respectively by the Enforcement Judges and the Assize Courts, on the basis of the case file, without hearing the applicants or their lawyers, pursuant to Law No. 4675 on Enforcement Judges, dated 16 May 2001.

The details of the applications as well as the complaints raised by the applicants appear in the table below.

A description of the relevant domestic law may be found in Gülmez v. Turkey, no. 16330/02, §§ 13-15, 20 May 2008 and Aydemir and others (dec.), nos. 9097/05, 9491/05, 9498/05, 9500/05, 9505/05, and 9509/05, 9 November 2010.


The applicant was born in 1950 and lives in Baku.

By an order of the Narimanov District Executive Authority (“NDEA”) of 2 June 1993, the applicant was issued, under the state housing policy, an occupancy voucher (yaşayış orderi) to a three-room apartment in a state-owned residential building in Baku. The applicant did not move into her new apartment at that time, because the construction of the building had not been completely finished and the tenants had to undertake the repair works in their respective apartments at their own expense.

In 1997, pursuant to an oral agreement, the applicant allowed R., an acquaintance of hers, to use the apartment temporarily, free of charge. Under the arrangement reached by the parties, R. was to use the apartment in exchange for certain repair works that he would perform using the materials provided by the applicant. In addition, R. agreed to vacate the apartment whenever the applicant made such a demand.

Some unspecified time later, in breach of the existing oral agreement, R. allowed his relative H. and his family (hereinafter to be collectively referred to as “H.”) to move into and live in the apartment. H. were internally displaced persons (“IDP”) from Agdam, a region under control of Armenian military forces following the Armenian-Azerbaijani conflict over Nagorno-Karabakh.

When the applicant found out that her apartment was occupied by people unknown to her, she requested that they vacate it. However, H. refused to do so, stating that they had no other place to live. The applicant filed a lawsuit, requesting the court to evict H. from the apartment.

On 29 March 2000 the Nizami District Court granted the applicant's request. The court found that, prior to moving into the disputed apartment, H. had been living in the Barda Region and in the Khatai District of Baku where they had been registered as IDPs. They did not dispute the fact that they had settled in the apartment in 1997. The court further found that the applicant was the lawful tenant of the apartment and, as such, had a right to demand H. to vacate it. The court ordered that H. be evicted. H. appealed.

On 30 September 2002 the Court of Appeal quashed the district court's judgment. The court held that NDEA's order to issue an occupancy voucher to a partly constructed building had been in breach of the requirements of the domestic law. The court further held that the applicant had not concluded a social tenancy agreement concerning the apartment and, therefore, she could not have a valid claim to it. The court therefore quashed the first-instance court's order to evict H. from the apartment.

The applicant filed an appeal in cassation. On 13 December 2002 the Supreme Court reversed the Court of Appeal's judgment and partially upheld the applicant's request. The Supreme Court found that the Court of Appeal erred in judging on the validity of the applicant's occupancy voucher. It held that the applicant's tenancy rights were undisputed and that the proceedings only concerned H.'s right to remain in the applicant's apartment. The Supreme Court quashed the Court of Appeal's decision in this part.

The Supreme Court further ruled that H. should vacate the applicant's apartment. However, taking into account the fact that H. could not return to their permanent place of residence in Agdam and, in the meantime, had no other place in which to reside, the Court held that the execution of its decision should be postponed until they could return to Agdam.

Thereafter, based on the applicant's additional cassation appeal, the proceedings were reopened and on 27 January 2005 the Plenum of the Supreme Court quashed the Supreme Court's decision of 13 December 2002. The Plenum noted that, having found errors in the Court of Appeal's judgment, the Supreme Court had no competence under civil procedure law to deliver a new judgment on the merits and, instead, was obliged to quash the Court of Appeal's judgment and refer the case for re-examination by the Court of Appeal. Accordingly, the Plenum found that, although the conclusions reached by the Supreme Court were essentially correct, it had breached the procedural rules by delivering a new judgment on the merits. The Plenum remitted the case to the Court of Appeal.

On 7 April 2005 the Court of Appeal delivered a judgment identical to the Supreme Court's decision of 13 December 2002. It ruled that H. should vacate the applicant's apartment. It further held as follows:

“... the claim of V.B. Akimova must be upheld; however, having regard to the fact that the defendants are internally displaced persons from the Agdam Region and do not have another place in which to reside, the execution of the judgment shall be postponed until the Agdam Region is liberated from occupation.”

At present, Agdam remains under the control of Armenian forces and the Nagorno-Karabakh conflict remains unresolved. At the time of the latest communication with the parties, H. was still living in the applicant's apartment.

The Housing Code provides that Azerbaijani citizens are entitled to obtain a right of use of apartments owned by the State or other public bodies, under the terms of a tenancy agreement (Articles 10 and 28).

A decision on granting an apartment is to be implemented by way of issuing the citizen with an occupancy voucher (yaşayış sahəsi orderi) from the local executive authority (Article 48). The voucher serves as the sole legal basis for taking possession of the apartment designated therein (Article 48) and for concluding a tenancy agreement (yaşayış sahəsini icarə müqaviləsi) between the tenant and the housing maintenance authority (Article 51).

The right of use of apartments is granted for an indefinite term (Article 10). The tenant can terminate the tenancy agreement at any moment, with the consent of his or her family members (Article 87). The landlord (the housing maintenance authority) can terminate the agreement only on the grounds provided for by law and on the basis of a court decision (Articles 88-89). If the agreement is terminated because the house is no longer fit for living in, the tenant and family must be provided with a substitute apartment with full amenities (Articles 90 and 96). Tenants or members of their family can be evicted without provision of substitute accommodation only if they “systematically destroy or damage the apartment”, “use it for purposes other than residence” or “systematically breach the [generally accepted rules of conduct], thus making cohabitation with others impossible” (Article 97).

Individuals residing, pursuant to a tenancy agreement, in apartments owned by the State and other public bodies have a right to transfer these apartments into their private ownership (Article 1). Such privatisation is voluntary and free of charge (Article 2). The right to privatise a State-owned apartment free of charge may be exercised only once (Article 7).

Article 2 of the Law provides as follows:

“Persons displaced from the places of their permanent residence in the territory of the Republic of Azerbaijan to other places within the territory of the country as a result of foreign military aggression, occupation of certain territories or continuous gunfire, shall be considered as internally displaced persons subject to the provisions of this Law.”

Article 5 of the Law provides as follows:

“The relevant executive authority [the Cabinet of Ministers, State Committee on the Refugees' Affairs and local executive authorities, within the scope of their respective competence] shall deal with the housing of internally displaced persons. Residential, administrative and auxiliary buildings, as well as other buildings, shall be used for such housing purposes. Where there is no possibility to house internally displaced persons in such buildings or where the density of population in a specific settlement does not allow such a possibility, they shall be settled in camps specially set up for internally displaced persons. ...

The internally displaced persons may be allowed to temporarily settle on their own only if the rights and lawful interests of other persons are not infringed. Otherwise, the relevant executive authority must ensure re-settlement of the internally displaced persons to other accommodation...”

Article 4 of the Regulations provides:

“In order to prevent the eviction of the internally displaced persons from dwellings in which they settled during the period of 1992-1994, the legal force of the occupancy vouchers issued by the relevant authorities to individual citizens in respect of those dwellings shall be temporarily suspended...”

In cases where the temporary settling of internally displaced persons breaches the housing rights of other individuals, the former must be provided with other suitable accommodation (Article 4).

The judge examining a civil case may, upon a petition by a party to the case, decide to postpone or suspend the execution of the judgment or change the manner of execution, due to the parties' property situation or other circumstances (Article 231).


Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property

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

The applicant was born in 1952 and lives in the town of Novovoronezh in the Voronezh Region.

The applicant was entitled to a disability allowance and commodity benefits. She sued the local Social Security Committee for the unpaid allowance and benefits, and claimed their re-adjustment.

By judgment of 16 July 2003, the Novovoronezh Town Court of the Voronezh Region awarded the applicant 22,109.75 Russian roubles (RUB) for the period from 1 July 2002 to 31 July 2003. On 14 October 2003 the Voronezh Regional Court upheld the judgment. The applicant received the money due to her on 7 June 2005. On 5 September 2005 the Town Court awarded the applicant RUB 5,552.02 as compensation for inflationary losses caused by the delay in the enforcement of the judgment of 16 July 2003, as upheld on 14 October 2003. It appears that the compensation award has not been paid to the applicant.

By judgment of 5 January 2004, the Town Court awarded the applicant RUB 13,971.25 for the period from 1 August to 31 December 2003. This judgment became final on 15 January 2004. It was enforced on 4 August 2005.

On 15 April 2004 the Town Court increased the applicant’s monthly allowance to RUB 5,664.84 and awarded her RUB 9,494.52 in arrears for the period from 1 January to 31 March 2004. The judgment became final on 26 April 2004. It was enforced on 25 August 2005.

On 30 September 2004 the Town Court awarded the applicant RUB 9,494.52. On 11 October 2004 the judgment became final. The applicant received the money on 25 August 2005.

By judgment of 15 November 2005, the Town Court awarded RUB 5,700.35 as compensation for inflationary losses in respect of the sums awarded to the applicant on 5 January, 15 April and 30 September 2004. It appears that the compensation award has not been paid to the applicant.

By judgment of 16 February 2004, the Town Court awarded the applicant RUB 4,973.57. The judgment became final on 26 February 2004. Apparently, it remains without enforcement.

On 6 September 2004 the Town Court awarded RUB 2,272.30 to the applicant and increased her monthly commodity benefits to RUB 679.78. The judgment became final on 17 September 2004. It appears that on 16 July 2004 the applicant received RUB 500 in execution of that judgment.