Remainder inadmissible;Violation of Art. 6-1;Violation of Art. 8;Violation of Art. 13+6-1;Damage - claim dismissed

David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

The applicant was born in 1955 and lives in Poprad.

On 14 April 1993 the District Court in Poprad restricted the applicant’s legal capacity in that she was not allowed to act on her own before public authorities. The court relied on the opinion of several experts concluding that the applicant suffered from a mental disorder as a result of paranoid development of her personality. The applicant suffered from the delusion that she was being persecuted and on that ground she had made a considerable number of complaints and other submissions. The applicant’s mother was appointed guardian for the purpose of the proceedings concerning the limitation of the applicant’s legal capacity.

On 18 April 1994 the Regional Court in Košice upheld the first-instance judgment, which became final on 26 July 1994.

On 1 August 1994 the District Court in Poprad brought proceedings on its own initiative with a view to appointing a guardian for the applicant, whose legal capacity had been restricted by the above decisions. On 12 September 1994 the file was transmitted to the Regional Court in Košice for decision on an objection to the judges of the District Court.

On 30 December 1994 the Regional Court excluded the judges of the District Court in Poprad and transferred the case to the District Court in Prešov. The file was returned to the District Court in Poprad on 9 March 1995. The decision was served on the applicant on 20 March 1995. On 6 April 1995 the file was sent to the District Court in Prešov where the case was registered under number P 81/95.

On 12 July 1995 and 30 August 1995 the District Court asked the applicant’s husband to inform it about persons who could act as the applicant’s guardian. The mail was returned to the court with the explanation that the addressee was in hospital. On 19 September 1995 the Town Office in Poprad submitted information at the District Court’s request of 30 August 1995.

On 29 September 1995 the District Court asked the applicant’s mother whether she was willing to act as her daughter’s guardian. The mother replied in the negative.

On 5 October 1995 the court appointed a judicial secretary to act as the applicant’s guardian in the proceedings in issue.

On 18 October 1995 the applicant’s brother refused to act as guardian.

On 31 October 1995 the Town Office in Poprad informed the District Court that its employees were unable to identify a person willing to act as the applicant’s guardian. On 14 and 16 November 1995 the applicant’s sisters refused to assume that duty.

At a hearing held on 4 December 1995 the Poprad Municipality proposed that its employee Mrs Ch. be appointed as the applicant’s guardian. That person stated that the applicant had no confidence in her. The case was adjourned and the court asked the municipality to indicate an employee of the Town Office who would act as the applicant’s guardian. On 18 December 1995 the Poprad Municipality again proposed that Mrs Ch. should be charged with that responsibility. In a letter of 15 January 1996 the applicant replied that she disagreed.

On 29 January 1996 Mrs Ch. informed the court that she had been unable to find any person willing to assume the duty in question. The District Court decided that Mrs K., a person who had represented the town of Poprad at the previous hearing, should act as the guardian. Both Mrs K. and the applicant appealed in March 1996. On 1 April 1996 Mrs K.’s appeal was sent to the District Prosecutor’s Office.

On 20 June 1996 the Regional Court in Košice quashed the District Court’s decision of 29 January 1996.

On 16 July 1996 the first-instance court made five inquiries with a view to finding a suitable person. Those inquiries were unsuccessful.

On 5 September 1996 the District Court decided that the Town Office in Poprad should act as the applicant’s guardian. The decision was served on the applicant, after several unsuccessful attempts, on 3 December 1996. On 11 December 1996 the applicant appealed.

The file was sent to the Regional Court in Košice on 20 January 1997. On 13 March 1997 it was transmitted to the Regional Court in Prešov, due to a change in the jurisdiction of the courts of appeal.

On 21 March 1997 the Regional Court in Prešov quashed the first-instance decision on the ground that the Town Office lacked legal capacity and therefore could not act as the applicant’s guardian.

On 6 May 1997 the District Court appointed the Poprad Municipality as the applicant’s guardian in respect of all actions involving the applicant’s relations with public authorities.

On 10 July 1997 the applicant appealed. She also challenged the District Court judges.

Between 17 July 1997 and 28 August 1997 the file was submitted to the Regional Court in Košice for consultation.

On 24 September 1997 the file was submitted to the Regional Court in Prešov for a decision on the applicant’s appeal. The Regional Court returned the file to the first-instance court with the instruction that the District Court judge should first comment on the request for her exclusion and that a mistake in the decision of 6 May 1997 should be rectified.

The District Court delivered a rectified decision on 24 October 1997. The court had difficulties in serving the rectified decision on the applicant, who received it on 8 December 1997.

On 26 January 1998 the Regional Court in Prešov upheld the decision on the appointment of a guardian and dismissed the applicant’s request for the withdrawal of the first-instance court judge. The decision became final on 14 April 1998.

On 21 October 1998 the Poprad Municipality proposed to the Prešov District Court that legal capacity should be restored to the applicant.

On 18 January 1999 the District Court appointed an expert with a view to assessing the applicant’s health. On 22 January 1999 it asked a local authority to submit a report on the applicant.

On 2 February 1999 the applicant challenged the expert, alleging that drugs had been forcibly administered to her in the hospital department where the expert worked. On 28 April 1999 the District Court appointed a different expert, who was requested to submit an opinion within sixty days.

On 16 July 1999 the expert appointed by the court proposed that an expert in psychology should assist him. He also asked for an extension of the time-limit within which the opinion was to be submitted.

After they had examined the applicant as an outpatient on 7 and 10 August 1999 the experts submitted an opinion to the District Court on 29 August 1999. It comprised twenty-three pages. According to the opinion, the applicant had been suffering from a chronic disorder resulting in a querulous type of paranoia for many years. She had no critical approach to the disorder and she remained persuaded that her actions were correct. The applicant understood judicial proceedings only within the frame of her mental disorder, in that she remained convinced that courts and other authorities were doing harm to her. The illness was of a lasting character and had developed in a slow and latent manner. It had advanced as compared with 1993, when the applicant’s legal capacity had first been restricted. The experts did not recommend that the applicant be heard in person by a court or that judgments should be served on her, as she was unable to understand the scope of the proceedings and the judicial decisions correctly.

On 9 November 1999 the Prešov District Court heard the expert appointed and the representative of the authority acting as the applicant’s guardian. The latter stated that the proposal to restore full legal capacity to the applicant had been submitted as she had appeared well balanced at that time. However, officials of the Poprad Municipality had encountered serious difficulties with the applicant during the subsequent period. The representative confirmed that the applicant had reacted in an inappropriate manner whenever authorities had failed to act in accordance with her wishes.

The District Court also heard a guardian whom it had appointed to represent the applicant in the proceedings. The guardian did not propose restoring full legal capacity to the applicant as her health had not improved.

Relying on the expert opinion the District Court decided not to hear the applicant. Reference was made to Article 187 § 2 of the Code of Civil Procedure.

In its judgment of 9 November 1999 the District Court referred in detail to the applicant’s situation and behaviour. With reference to the experts’ conclusion it held that numerous abusive complaints, submissions and appeals which the applicant had made proved that her personality disorder persisted, resulting in her querulous behaviour. The court therefore decided not to restore full legal capacity to the applicant.

As the applicant’s mental disorder was chronic and since it could not be expected that her health would improve, the court decided that the applicant was not to be allowed to make a fresh request for full legal capacity to be restored to her for three years from the date of the judgment. Reference was made to Article 186 § 3 of the Code of Civil Procedure.

Following the explicit recommendation of the experts, the District Court decided not to serve the judgment on the applicant. It became final on 11 December 1999.

On 5 December 2000 the General Prosecutor lodged an extraordinary appeal on points of law on the applicant’s behalf, in which he contested the decision that the applicant was not entitled to make a fresh claim concerning her legal capacity for three years. The General Prosecutor objected that the District Court had decided exclusively at the request of the applicant’s guardian and that it had failed to decide on the applicant’s requests seeking restoration of full legal capacity, which were included in the file.

The Supreme Court dismissed the appeal on points of law on 19 December 2000. It held that the first-instance court had considered all relevant facts, including the applicant’s submissions.

The applicant married Mr B. on 22 January 1977. Two children were born to the couple, in 1979 and 1981 respectively. The spouses were divorced at the applicant’s petition on 1 July 1991.

On 30 November 1991 the applicant and Mr B. remarried.

On 21 March 1994 the applicant applied for a divorce before the Poprad District Court.

On 23 March 1994 the judge instructed the Poprad District Court’s Registry to wait for the outcome of the proceedings concerning the applicant’s legal capacity.

On 4 May 1994 the applicant’s husband informed the court that he had agreed to a divorce.

On 26 May 1994 the file was submitted to the Regional Court in Košice as the judges of the District Court in Poprad considered themselves biased. On 9 June 1994 the Regional Court decided that the case was to be dealt with by the District Court in Prešov. The file was transmitted to the latter court on 10 August 1994.

On 6 June 1995 the proceedings were stayed pending the outcome of the above proceedings no. P 81/95 concerning the appointment of a guardian. A guardian was appointed to represent the applicant in the divorce proceedings. The decision to stay the proceedings was served on that guardian on 21 June 1995.

On 6 July 1995 the applicant appealed against the decision to stay the divorce proceedings. The file was transmitted to the Regional Court of Košice on 25 July 1995. On 22 December 1995 the Regional Court dismissed the appeal on the ground that the applicant lacked the standing to file it, as her legal capacity had been restricted on 14 April 1993.

The judge made inquiries as regards the progress of proceedings no. P 81/95 on 3 May 1995, 5 June 1997, 3 March 1998 and 27 April 1998.

On 15 May 1998 the District Court asked the Poprad Municipality to inform it, as the applicant’s guardian, whether it was seeking determination of the applicant’s petition for divorce. The court reiterated that request on 19 August 1998 and 17 November 1998. On 7 December 1998 the Poprad Municipality replied in the affirmative. On 19 January 1999 the Poprad Municipality submitted further documents and information at the court’s request of 22 December 1998.

On 25 January 1999 the Poprad Municipality proposed that the divorce proceedings should be stayed pending the determination of its proposal that full legal capacity be restored to the applicant, which had been made in October 1998. On 17 March 1999 the Poprad Municipality submitted further copies of the petition for divorce, in compliance with the District Court’s request.

On 18 May 1999 the District Court asked the municipality to pay the court fee.

On 20 May 1999 the court sent the applicant’s claim to her husband. The latter submitted his comments on 14 June 1999.

On 8 June 1999 the Poprad Municipality asked for an exemption from the obligation to pay the court fee.

On 6 September 1999 the case was assigned to a different judge.

On 27 January 2000 the District Court exempted the applicant from the obligation to pay the court fee.

A hearing was held on 28 February 2000, at which the Prešov District Court granted the applicant and her husband a divorce. The judgment was sent to the parties on 20 April 2000 and it became final on 16 June 2000.

On 14 February 1994 the applicant claimed before the Poprad District Court that property she and her husband jointly owned as spouses should be divided. The judge decided to wait for the outcome of the proceedings on the applicant’s legal capacity, which were then pending before the court of appeal.

As the Poprad District Court judges considered themselves biased, due to the applicant’s past statements about them, the file was submitted to the Regional Court in Košice. On 30 June 1994 the Regional Court excluded the judges of the District Court in Poprad and transferred the case to the District Court in Prešov. The file was transmitted to that court on 10 August 1994.

On 6 June 1995 the proceedings were stayed pending the outcome of proceedings no. P 81/95, relating to the appointment of a guardian for the applicant. On the same day a guardian was appointed to represent the applicant in the proceedings for division of matrimonial property.

On 6 July 1995 the applicant appealed. The case was submitted to the Regional Court in Košice on 1 February 1996. On 12 February 1997, 4 April 1997 and 14 May 1997 the Regional Court asked the District Courts in Poprad and Prešov for files concerning the applicant’s legal capacity. The Regional Court dismissed the applicant’s appeal against the decision to stay the proceedings on 28 August 1997. The file was returned to the District Court in Prešov on 16 September 1997.

On 16 November 2000 the District Court asked the Poprad Municipality to inform it, as the applicant’s guardian, whether it maintained the action. The District Court reiterated that request on 12 February 2001. It warned the municipality that a fine would be imposed on it in the absence of a reply.

On 19 February 2001 the Poprad Municipality withdrew the applicant’s action on the ground that the applicant and her husband had divorced in the meantime. The applicant’s claim had concerned division of property which the applicant and her husband had jointly owned during their marriage. The reason for the applicant’s action no longer existed.

The District Court discontinued the proceedings on 21 February 2001. The decision became final on 24 May 2001.

On 10 February 1994 the applicant claimed before the Poprad District Court that her husband should be obliged to contribute to her maintenance.

On 17 February 1994 the judge decided to wait for the outcome of the proceedings relating to the applicant’s legal capacity, which were then pending before the court of appeal.

On 26 May 1994 the file was submitted to the Regional Court in Košice as the judges of the District Court in Poprad considered themselves biased. On 30 June 1994 the Regional Court decided that the case was to be dealt with by the District Court in Prešov. The file was transmitted to the latter court on 11 August 1994.

On 30 August 1994 the District Court in Prešov asked the applicant’s husband for comments on the action. It also asked the applicant to specify her claim.

On 30 August, 13 October and 10 November 1994 and 16 January and 6 March 1995 the District Court in Prešov asked for information concerning the proceedings relating to the restriction of the applicant’s legal capacity and for the relevant file.

On 6 June 1995 the District Court in Prešov stayed the proceedings pending the outcome of proceedings no. P 81/95 relating to the appointment of a guardian. It also appointed a guardian to represent the applicant in the proceedings concerning her claim for maintenance.

On 6 July 1995 the applicant appealed against the decision to stay the proceedings. On 28 June 1996 the court of appeal discontinued the proceedings on the appeal as the applicant lacked standing to lodge it. The file was returned to the first-instance court on 8 July 1996.

The District Court in Prešov asked for the file in proceedings no. P 81/95 on 22 August 1996, 7 February and 5 June 1997 and 16 February 1998. It did not obtain that file, as the relevant case had been dealt with by different courts.

On 22 April 1998 the case concerning the applicant’s claim for maintenance was allocated to a different judge of the Prešov District Court. On 27 April 1998 the judge was informed that file no. P 81/95 could still not be submitted, as that case had been dealt with.

On 15 May 1998 the District Court asked the applicant’s guardian, the Poprad Municipality, for comments on the applicant’s claim. In the absence of any reply the District Court reiterated the request on 19 August 1998 and on 17 November 1998. On 7 December 1998 the Poprad Municipality replied that it was maintaining the applicant’s claim for maintenance. On 19 January 1999 the municipality submitted further information at the request of the District Court.

On 9 February 1999 the District Court asked three different authorities for information about the situation of the applicant and her husband. It received replies during March 1999.

On 6 September 1999 the case was allocated to a different judge.

On 1 February 2000 the District Court asked the Poprad Municipality for information about the applicant’s income in 1994 and 1995.

A hearing was held on 28 February 2000. The applicant’s husband did not appear. On 3 April 2000 the defendant informed the court that he had been in hospital since the beginning of February 2000 and that he would be undergoing surgery. The hearing scheduled for 17 April 2000 was therefore cancelled.

On 28 April 2000 the case was allocated to a different judge.

On 17 May 2000 the court asked the defendant’s employer for information about the income of the applicant’s husband. On 20 June 2000 it made an inquiry as regards the applicant’s legal capacity.

The District Court heard a representative of the Poprad Municipality on 12 July 2000. The case was adjourned as the defendant was absent.

On 6 September 2000 the District Court heard the parties. It dismissed the action with reference to the situation of the applicant and that of her husband. It noted in particular that the defendant had covered all household expenses and the maintenance of their two children at the material time. The judgment was served on the parties on 23 October 2000 and 6 December 2000 respectively.

On 5 November 1987 the applicant brought an action with the District Court in Poprad. She challenged her employer’s conclusion that she had been absent from work without authorisation for five days and claimed compensation for lost income totalling 1,141 Czechoslovak korunas.

On 17 June 1988 the District Court in Poprad found that the employer had proceeded erroneously. It granted the claim for compensation in part. Both the applicant and the defendant appealed. On 25 January 1989 the Regional Court in Košice upheld the first-instance judgment. On 27 June 1991 the Supreme Court quashed the lower courts’ decision to dismiss a part of the applicant’s claim and returned the case to the Poprad District Court. The outstanding part of the proceedings concerned a claim for payment of the equivalent of approximately 12 euros (EUR).

The District Court did not proceed with the case as it was established that, in the meantime, proceedings concerning the applicant’s legal capacity had been brought.

On 14 March 1994 the applicant requested that the Poprad District Court judges should be excluded from all her cases.

In 1999 and in 2001 the Poprad District Court requested the file concerning the applicant’s legal capacity. The Prešov District Court replied on 21 February 2001 that the file had been sent to the Regional Prosecutor’s Office in Prešov.

On 30 April 2001 the applicant’s guardian informed the District Court in Poprad that the applicant was maintaining her request for exclusion of the judges.

In October and December 2003 the District Court again requested that the file concerning the applicant’s legal capacity should be submitted to it.

On 23 June 2004 the case was assigned to a different judge.

The District Court received the requested files concerning different cases of the applicant on 6 July 2004.

On 17 February 2005 the Poprad District Court judges were invited to comment on the applicant’s request for their exclusion. Later the Regional Court in Prešov excluded the judge of the District Court who had dealt with the case. The case was transferred to a different chamber of the District Court on 18 May 2006.

On 7 March 2007 the Poprad District Court noted that the parties had concluded a friendly settlement under which the defendant undertook to pay the equivalent of EUR 5 plus default interest to the applicant. The court discontinued the proceedings in respect of that part of the action. The applicant withdrew the remaining part of her claim (payment of the equivalent of EUR 7) as that sum had already been paid to her.

In 1991 the applicant brought an action with the Poprad District Court which concerned the right to use a flat (Poprad District Court file no. 15 C 692/91). On 17 June 2002 she informed the Court that the District Court had failed to proceed with the action.

On 25 April 1994 the applicant and several other members of her family sued the applicant’s husband on the ground that he had made vulgar statements in respect of the applicant and her relatives. The Prešov District Court decided on the action on 24 June 1999 (file no. 15 C 76/96).

In 1996 the applicant sued her husband, claiming compensation for non-pecuniary damage on the ground that the defendant had ill-treated her. On 24 June 1999 the Prešov District Court dismissed the action.

On 30 May 1996 the applicant claimed before the Poprad District Court that she should be granted custody of her children and that their father should be ordered to pay maintenance. On 4 July 1996 the applicant claimed compensation for movable property before the Poprad District Court. The District Court did not proceed with those claims as the applicant had not made them through the intermediary of her guardian.

In 1996 the Spišská Nová Ves District Court approved of an examination of the applicant’s health in a mental hospital without her consent. The relevant decision became final on 17 November 1997 (file no. Ncú 8/96).

On 3 March 1999 the applicant and several other persons claimed damages from a couple who had sold livestock to them. The applicant submitted the relevant documents to the Court on 13 August 2002 stating that the proceedings concerning that claim were still pending (Stará Ľubovňa District Court file no. 5 C 771/98).

On 22 November 2000 the cooperative which owned the flat in which the applicant and her husband lived claimed that the tenants should be ordered to move out as they had failed to pay the rent. On 28 November 2001 the Poprad District Court granted the claim (file no. 14 C 1156/00). The judgment became final on 29 December 2001.

On 10 September 2001 the cooperative sued the applicant and her husband for a sum of money. On 27 March 2002 the District Court in Poprad discontinued the proceedings as the plaintiff had withdrawn the action (file no. 11 C 942/02). On 26 April 2002 the applicant appealed. No further information has been submitted.

The applicant unsuccessfully made a number of criminal complaints against different persons including her husband and one of the judges dealing with her cases.

On 6 May 2003 the applicant complained to the Constitutional Court about a violation of her rights in the proceedings concerning her cases. On 12 February 2004 the Constitutional Court appointed an advocate to represent the applicant. The advocate submitted a complaint in due form on 24 September 2004.

On 11 January 2005 the Constitutional Court declared admissible the complaint about a violation of the applicant’s right to a hearing by an independent tribunal and without unjustified delays in the proceedings concerning a labour dispute which had been pending since 1987. It rejected the remaining complaints for the following reasons.

The Constitutional Court rejected as having been lodged outside the statutory two-month time-limit complaints relating to (i) the claim for division of matrimonial property of 14 February 1994, (ii) the applicant’s claim for maintenance of 10 February 1994 and (iii) the proceedings concerning the placement of the applicant in a mental hospital for the purpose of examination of her health, in which the final decision had been given in 1996.

The Constitutional Court noted that the District Court in Poprad had failed to proceed with the applicant’s claims for compensation for movable property of 4 July 1996 and for custody of her children and their maintenance, lodged on 30 May 1996. It found no violation of her constitutional rights in that context, as the applicant’s legal capacity had been restricted and she had not been entitled to bring judicial proceedings herself. After examination of the relevant files, the Constitutional Court held that the authority appointed to act as her guardian had not failed to comply with any of its duties. In particular, the applicant’s guardian had acted with due care in the divorce proceedings in 1994 in the context of which both the custody and maintenance of the children and the division of marital property had been determined.

On 20 April 2005 the Constitutional Court gave a decision on the merits of the admissible part of the case. It found that the Poprad District Court had violated the applicant’s right to a hearing without unjustified delay. It noted that the proceedings had been pending for over seventeen years and that during the period falling within its jurisdiction (from 17 March 1993) there had been delays imputable to the District Court totalling 135 months. The Constitutional Court granted the applicant 90,000 Slovakian korunas (SKK) as just satisfaction. It ordered the District Court to proceed with the case without delay and to reimburse the costs of the applicant’s representation in the constitutional proceedings.

Article 10 §§ 2 and 3 entitles courts to restrict the legal capacity of individuals who, inter alia, are suffering from a lasting mental disorder and who are therefore capable of taking only certain legal actions. A restriction on a person’s legal capacity or his or her deprivation thereof has to be cancelled or its scope modified when the underlying grounds change or fall away.

Article 58 § 1 entitles courts to exempt a party from the obligation to respect a time-limit which that party has failed to respect for a justifiable reason. A request to that effect has to be made within fifteen days from the date the obstacle preventing the party from taking the relevant legal action has fallen away.

Under Article 186 § 3, as in force at the relevant time, a person who was deprived of legal capacity could claim that it should be restored to him or her. However, where a court dismissed such a request and where it could not be expected that the condition of the person concerned would improve, courts were entitled to prevent that person from making a similar request for an appropriate period, the length of which could not exceed three years.

With effect from 1 October 2004 Article 186 § 3 has been amended in that the period during which a person can be prevented from claiming restoration of his or her legal capacity was reduced to a maximum of one year.

In a commentary on the above amendment the view was expressed that the original three-year period had been excessively long and capable of seriously affecting a person’s human rights. In view of the progress of medical science, reduction of that period to a maximum of one year was considered appropriate (see Občiansky súdny poriadok, Nová práca, spol. s r.o., 2006, p. 265).

Article 187 § 2 provides that a court can refrain from hearing a person whose legal capacity is to be restricted where it is not possible to hear such a person at all or where a hearing would impair that person’s health.

Under Article 189 § 2, courts can refrain from serving a decision concerning a person’s legal capacity where its service can have a negative impact on that person because of his or her mental disorder or where the person concerned is not capable of understanding the meaning of the decision.


David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza

The applicant, Mr Peter Stancill, is a British national who was born in 1954 and lives in Sheffield. He was represented before the Court by Royds Rdw, solicitors in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office.

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

The applicant's wife died on 2 July 2000. His claim for widows' benefits was made on 7 July 2000 and was rejected on 14 July 2000 on the ground that he was not entitled to widows' benefits because he was not a woman. On 24 July 2000 the applicant appealed and on 29 August 2000 reconsideration took place. The previous decision was upheld. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under United Kingdom law.

The domestic law relevant to this application is set out in Willis v. the United Kingdom, no. 36042/97, §§ 1426, ECHR 2002-IV and Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.


CASE OF PALOMO SÁNCHEZ AND OTHERS v. SPAIN

Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Elisabeth Steiner;Françoise Tulkens;Ineta Ziemele;Isabelle Berro-Lefèvre;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Ledi Bianku;Luis López Guerra;Mirjana Lazarova Trajkovska;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Peer Lorenzen

The applicants live in Barcelona.

They were employed as delivery men by the company P., against which they brought several sets of proceedings in employment tribunals. The applicants sought to secure recognition by the employer of their special “salaried worker” status, as confirmed by judgments of 2 May and 30 December 1995 of the High Court of Justice of Catalonia, in order to be covered by the corresponding social-security regime. Representatives of a committee of non-salaried delivery staff in the company P. had testified against them in those proceedings.

On 21 May 2001 the applicants set up the trade union Nueva Alternativa Asamblearia (NAA) to defend their interests and those of the other delivery staff who were under pressure from the company P. to renounce their claim to salaried status. The applicants joined the union’s executive committee. On 3 August 2001 the applicants informed the company P. of the setting-up of a branch of the trade union inside the company, of its composition, and of their appointment as members of the executive committee of that workplace branch. Mr Juan Manuel Palomo Sánchez was the trade-union representative, Mr Francisco Antonio Fernández Olmo the treasurer, Mr Agustín Alvarez Lecegui the press and communications officer and Mr Francisco José María Blanco Balbas the organisation officer. No changes concerning the appointment of the union members or their duties have taken place since the union was formed.

The trade union NAA published a monthly newsletter. The March 2002 [sic] issue reported on the judgment of 2 April 2002 of Barcelona Employment Tribunal no. 13, which had partly upheld the applicants’ claims, ordering the company P. to pay them certain sums in respect of salaries owed to them.

On the cover of the newsletter, a cartoon with speech bubbles showed a caricature of the human resources manager, G., sitting behind a desk under which a person on all fours could be seen from behind, together with, to one side, A. and B., also employees of the company P. and representatives of a committee of its non-salaried delivery workers, who were watching the scene while waiting to take their turn to satisfy the manager. Inside the newsletter were two articles which vehemently denounced the fact that those two individuals had testified in favour of the company P. in proceedings that the applicants had brought against their employer. The newsletter was distributed among the workers and displayed on the noticeboard of the trade union NAA which was located on the company’s premises.

On 3 June 2002 the company notified the applicants of their dismissal on grounds of serious misconduct, namely for impugning the reputations of G., A. and B., under Article 54 §§ 1 and 2 (c) of the Labour Regulations, which provide for the termination of a contract of employment where an employee is guilty of serious and negligent failure to perform his or her contractual obligations.

The applicants challenged that decision before Barcelona Employment Tribunal no. 17, which, in a judgment of 8 November 2002, dismissed their claims and found that the dismissals were justified, in accordance with Article 54 §§ 1 and 2 (c) of the Labour Regulations. The tribunal took the view that the company’s decision to dismiss the applicants had been based on a genuine and serious cause, namely the publication and display on a noticeboard inside the company of a cartoon with speech bubbles and two articles which were offensive and impugned the dignity of the persons concerned. The first article, entitled “Whose witnesses? Theirs, of course”, contained caricatures of A. and B., showing them gagged by a handkerchief tied behind their heads, and the text underneath read as follows:

“We knew who they were and how they behaved, but we didn’t know how far they were prepared to go in order to hold onto their seats and cushy jobs without doing anything.

As employees of P. we earn our living by selling goods in the street. A. and B. earn theirs by selling the workers in the courts. Not content with doing this simply by signing agreements that go against the collective interest, they’ve now gone a step further – they rob and steal with total impunity, in broad daylight, with the confidence of men who feel totally untouchable. They play at being gods.

... but they, the chairman and secretary of the staff representatives, agreed, just like guard dogs, to roll over and frolic in return for a pat on the back by their master. ...”

The tribunal noted that the text was a response to what had happened during proceedings brought by the applicants before Barcelona Employment Tribunal no. 13, in which A. and B. had appeared as witnesses against the applicants’ interests and in favour of their employer.

The article entitled “When you’ve rented out your arse you can’t shit when you please” read as follows:

“If you belong to a works council and you have to sign agreements with your employers that will never be honoured, just to keep you quiet, and agree to changes that only benefit their cronies, and to pay cuts and other sell-outs, then you’ve swapped your dignity for an armchair, [and] you have the dubious merit of achieving the same level of infamy as politicians and policemen. You see, you shut up and you shrewdly agree to all sorts of shenanigans. When you’ve rented out your arse, you can’t shit when you please. If you’re a despicable ‘professional trade unionist’ and you’ve thus sold your soul to the union, you’ll never have a surge of sincerity, because your status would be threatened. You say what the union tells you to say, and as the unions are ‘condoms’ on freedom, your lips are sealed just like your anal sphincter, because you’ve rented out your arse and you can’t shit when you please.

You can see the injustices meted out on your colleagues, the totally irrational way of dealing with their problems and the constant persecution to which they are subjected, but say nothing, for fear of drawing attention to yourself. Once upon a time, in the old days, you were a rebel who criticised the system – you would curse conventionalism and rant against the rules and regulations. You were caustic, dynamic, cutting, impulsive, jovial. But a couple of favours received have gradually cooled your fiery temperament, stoked your self-esteem and put the dampers on your feelings. From time to time you have a pang of nostalgia and you would like to fart, but your sphincter is sealed, because you’ve rented out your arse and can’t shit when you please.

You’re fed up with your work, pissed off, anxious, stressed and in despair, because of the longer working hours and the responsibilities, products, promotions and pressures. You could work anywhere, do anything without having to get up at the time others go to bed. You could break everything up, tear it to pieces, crush and demolish it all ... but your hands are tied by credits, IOUs and debts. You are crushed by your new SUV, your children’s after-school activities, and the twenty-five year mortgage on your semi-detached house. And you let yourself be humiliated, you swallow your pride, you shut up and you accept, because when you’ve rented out your arse, you can’t shit when you please.”

The newsletter was distributed to staff and displayed on the trade union’s noticeboard on the company’s premises.

The employment tribunal observed at the outset that the cause of the dismissal was the content of the newsletter and not the applicants’ trade-union membership. It referred in its judgment to the exercise of the right to freedom of expression in the context of labour relations and to the fact that it was not unlimited. It found that the limits to this right had to be interpreted in accordance with the principle of good faith, which in labour relations had to involve respect for the interests of the employer and the minimum requirements of coexistence in a professional environment. The judgment reiterated the Constitutional Court’s case-law to the effect that the right to respect for freedom of expression was subject to limits derived from labour relations, since the contract of employment created a series of rights and reciprocal obligations that circumscribed the exercise of the right to respect for freedom of expression. For that reason, certain manifestations of this right that might be legitimate in other contexts were not legitimate in the context of labour relations, even though the requirement to act in good faith did not always imply a duty of loyalty to the point of subjecting the worker to the employer’s interests.

As to the newsletter’s content, the tribunal took the view that the cartoon and speech bubbles on the cover, together with the articles inside, were offensive and exceeded the limits of freedom of expression and information, impugning the honour and dignity of the human resources manager and of delivery men A. and B., and damaging the image of the company P. Lastly, it noted that the dismissal could not be declared null and void, since it was based on serious misconduct as provided for by law, and found that the applicants’ fundamental rights had not been breached.

The applicants appealed. In a judgment of 7 May 2003, the High Court of Justice of Catalonia upheld the judgment under appeal in so far as it concerned the applicants.

The court referred, among other things, to the limits imposed by the principle of good faith between parties to a contract of employment and to the necessary balance that judicial decisions had to strike between a worker’s obligations under the contract and his freedom of expression. The balancing exercise had to enable it to be determined whether or not the reaction of the company that dismissed the employee was legitimate. For the court, the publication of the offending drawing and articles had clearly been harmful to the dignity of the persons concerned and had overstepped the limits of admissible criticism, as the exercise of freedom of expression did not justify the use of insulting, offensive or vexatious expressions that went beyond the legitimate exercise of the right to criticise and clearly impugned the respectability of the persons concerned. The company P. had, moreover, duly shown that the applicants’ dismissal was not a measure of reprisal or punishment, but was based on a genuine, serious and sufficient cause for deciding to terminate their contracts of employment.

The applicants lodged an appeal on points of law, seeking harmonisation of the relevant case-law. In a decision of 11 March 2004, the Supreme Court dismissed their appeal on the ground that the decision produced for purposes of comparison, namely a judgment of the High Court of Justice of Madrid of 31 July 1992, was not pertinent.

Relying on Article 24 (right to a fair hearing) of the Spanish Constitution, and on Articles 20 and 28 taken together (freedom of expression and association), the applicants lodged an amparo appeal with the Constitutional Court. In a decision of 11 January 2006, served on 13 January 2006, the Constitutional Court found the appeal inadmissible for lack of constitutional content. The decision reads as follows:

“... Firstly ... there is not enough evidence to show that the [appellants’] dismissal was an act of reprisal on the part of the respondent company because of the judicial proceedings they had brought against it to assert their rights ... Secondly, as to the [alleged] interference with trade-union freedom guaranteed by Article 28 of the Constitution (this complaint incorporating the appellants’ complaint under Article 14 of the Constitution in so far as they alleged discrimination on trade-union grounds), this is inadmissible as [the appellants] have not provided sufficient evidence to show that the company’s action was intended to restrict, hamper or prevent the exercise of their right to freedom of association, on account of their union membership or activities in a trade union. In line with what this court has repeatedly said, such evidence does not consist of a mere allegation of a constitutional violation but must be sufficient for it to be inferred that the violation could have been constituted ... which is not the case here, since the circumstances alleged do not give rise to any suspicion as to the potential violation in question. In their allegations, the appellants have simply expressed their disagreement with the decisions rendered by the courts below, which found in decisions giving reasons and not being manifestly unreasonable that they had committed the acts of which the company had accused them in their letters of dismissal.

Thirdly, there has not been a breach of Article 28 § 1 of the Constitution taken together with Article 20 § 1 (a), in the form of an infringement of the appellants’ right to freedom of expression in the context of their union activity, since this fundamental right does not encompass any right to insult others. As the Court held recently in judgment no. 39/2005 of 28 February (legal ground 4), reiterating its case-law, although the Constitution does not prohibit the use of hurtful, embarrassing or vituperative expressions in every circumstance, the constitutional or lack of veracity, are offensive or defamatory and are not pertinent for the purpose of conveying the opinions or information in question. The application of that jurisprudence to the present case leads the Court to the conclusion that the appellants’ right to freedom of expression has not been infringed, since they used that right in an excessive manner by means of value judgments expressed through cartoons and comments that were offensive and humiliating for the persons concerned and impugned their honour and reputation. [Those cartoons and comments] were not necessary for others to form an opinion about the facts of which the appellants wished to complain, and were therefore gratuitous and not necessary for the exercise of freedom of expression in a trade-union context.”

The relevant provisions of the Spanish Constitution read as follows:

“1. The following rights shall be recognised and protected:

(a) the right freely to express and disseminate thoughts, ideas and opinions orally, in writing or by any other means of reproduction;

(d) the right to receive and communicate true information by any means of dissemination. ...

The exercise of these rights may not be restricted by any prior censorship.

These freedoms shall be limited by respect for the rights secured in this Part, by the provisions of the implementing Acts and in particular by the right to honour and to a private life and the right to control use of one’s likeness and to the protection of youth and children.”

“1. Everyone shall have the right to associate freely ... Freedom of association shall include the right to form trade unions or to join a trade union of one’s choosing, and the right for trade unions to establish confederations and to set up or join international trade-union organisations. No one shall be obliged to join a trade union.

“1. The employer may decide to terminate a contract of employment by dismissing the employee for serious and negligent failure to perform his or her obligations.

Non-compliance with contractual obligations shall include:

(c) Verbal or physical attacks on the employer or persons working in the company, or members of their families living with them.”

Justified dismissal shall entail the termination of the contract without any right of compensation ...”

On 23 June 1971 the General Conference of the International Labour Organization (ILO) adopted Recommendation No. 143 concerning workers’ representatives, point 15 of which reads as follows:

“1. Workers’ representatives acting on behalf of a trade union should be authorised to post trade-union notices on the premises of the undertaking in a place or places agreed on with the management and to which the workers have easy access.

The management should permit workers’ representatives acting on behalf of a trade union to distribute news sheets, pamphlets, publications and other documents of the union among the workers of the undertaking.

The union notices and documents referred to in this paragraph should relate to normal trade-union activities and their posting and distribution should not prejudice the orderly operation and tidiness of the undertaking.”

At its fifty-fourth session in June 1970, the International Labour Conference adopted a Resolution concerning trade-union rights and their relation to civil liberties. The Conference explicitly listed the fundamental rights essential for the exercise of freedom of association, in particular: (a) the right to freedom and security of person and freedom from arbitrary arrest and detention; (b) freedom of opinion and expression and in particular freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers; (c) freedom of assembly; (d) the right to a fair trial by an independent and impartial tribunal; and (e) the right to protection of the property of trade unions.

In 1994 the ILO published a report entitled “Freedom of Association and Collective Bargaining: Trade-Union Rights and Civil Liberties”. The relevant passages of that report read as follows:

“Part I. Freedom of association and protection of the right to organise

Chapter II. Trade-union rights and civil liberties

Introduction

The Declaration of Philadelphia ... officially acknowledged the relationship between civil liberties and trade-union rights by proclaiming in Article I(b) that freedom of expression and of association are essential to sustained progress and referring in Article II(a) to the fundamental rights which are an inseparable part of human dignity. Since then, this relationship has been repeatedly affirmed and highlighted, both by the ILO’s supervisory bodies and in the Conventions, Recommendations and Resolutions adopted by the International Labour Conference.

The information available, in particular on the nature of the complaints submitted to the Committee on Freedom of Association, shows that the main difficulties encountered by trade-union organisations and their leaders and members relate to basic rights, in particular to the right to security of the person, freedom of assembly, freedom of opinion and expression, as well as the right to protection of trade-union property and premises. ...

Freedom of opinion and expression

Another essential aspect of trade-union rights is the right to express opinions through the press or otherwise. The full exercise of trade-union rights calls for a free flow of information, opinions and ideas, and workers, employers and their organisations should enjoy freedom of opinion and expression at their meetings, in their publications, and in the course of their other activities. In cases in which the issue of a trade-union publication is subject to the granting of a licence, mandatory licensing should not be subject to the mere discretion of licensing authorities, nor should it be used as a means of imposing prior restraint on the subject matter of publications; in addition any application for such a licence should be dealt with promptly. ... Measures of administrative control – for example, the withdrawal of a licence granted to a trade-union newspaper, the control of printing plants and equipment, or the control of paper supply – should be subject to prompt and independent judicial review.

An important aspect of freedom of expression is the freedom of speech of delegates of workers’ and employers’ organisations meetings, conferences and reunions, and in particular to the International Labour Conference. ...

State of emergency

The Committee considers that the guarantees set out in the international labour Conventions, in particular those relating to freedom of association, can only be effective if the civil and political rights enshrined in the Universal Declaration of Human Rights and other international instruments, notably the International Covenant on Civil and Political Rights, are genuinely recognised and protected. These intangible and universal principles, the importance of which the Committee wishes to emphasise particularly on the occasion of the 75th anniversary of the creation of the ILO and the 50th anniversary of the Declaration of Philadelphia, should constitute the common ideal to which all peoples and all nations aspire.”

The fifth edition (revised) of the Digest of Decisions and Principles of the Committee on Freedom of Association of the Governing Body of the International Labour Office, published in 2006, contains a summary of the principles formulated by that Committee in the context of individual or collective complaints concerning alleged violations of trade-union rights. The general principles concerning freedom of opinion and expression include the following:

“154. The full exercise of trade-union rights calls for a free flow of information, opinions and ideas, and to this end workers, employers and their organisations should enjoy freedom of opinion and expression at their meetings, in their publications and in the course of other trade-union activities. Nevertheless, in expressing their opinions, trade-union organisations should respect the limits of propriety and refrain from the use of insulting language. (See the 1996 Digest, para. 152; 304th Report, Case No. 1850, para. 210; 306th Report, Case No. 1885, para. 140; 309th Report, Case No. 1945, para. 67; 324th Report, Case No. 2014, para. 925; and 336th Report, Case No. 2340, para. 652.)

The right to express opinions through the press or otherwise is an essential aspect of trade-union rights. (See the 1996 Digest, para. 153; 299th Report, Case No. 1640/1646, para. 150; 302nd Report, Case No. 1817, para. 324; 324th Report, Case No. 2065, para. 131; 327th Report, Case No. 2147, para. 865; 328th Report, Case No. 1961, para. 42; 332nd Report, Case No. 2090, para. 354; and 333rd Report, Case No. 2272, para. 539.)

The right to express opinions without previous authorisation through the press is one of the essential elements of the rights of occupational organisations. (See the 1996 Digest, para. 154.)

The freedom of expression which should be enjoyed by trade unions and their leaders should also be guaranteed when they wish to criticise the government’s economic and social policy. (See the 1996 Digest, para. 155.)

The prohibition of the placing of posters stating the point of view of a central trade-union organisation is an unacceptable restriction on trade-union activities. (See the 1996 Digest, para. 467.)

The publication and distribution of news and information of general or special interest to trade unions and their members constitutes a legitimate trade-union activity and the application of measures designed to control publication and means of information may involve serious interference by administrative authorities with this activity. In such cases, the exercise of administrative authority should be subject to judicial review at the earliest possible moment. (See the 1996 Digest, para. 161; 320th Report, Case No. 2031, para. 172; and 327th Report, Case No. 1787, para. 341.)

While the imposition of general censorship is primarily a matter that relates to civil liberties rather than to trade-union rights, the censorship of the press during an industrial dispute may have a direct effect on the conduct of the dispute and may prejudice the parties by not allowing the true facts surrounding the dispute to become known. (See the 1996 Digest, para. 163.)

When issuing their publications, trade-union organisations should have regard, in the interests of the development of the trade-union movement, to the principles enunciated by the International Labour Conference at its thirty-fifth session (1952) for the protection of the freedom and independence of the trade-union movement and the safeguarding of its fundamental task, which is to ensure the social and economic well-being of all workers. (See the 1996 Digest, para. 165.)

In a case in which a trade-union newspaper, in its allusions and accusations against the government, seemed to have exceeded the admissible limits of controversy, the Committee pointed out that trade-union publications should refrain from extravagance of language. The primary role of publications of this type should be to deal with matters essentially relating to the defence and furtherance of the interests of the unions’ members in particular and with labour questions in general. The Committee, nevertheless, recognised that it is difficult to draw a clear distinction between what is political and what is strictly trade union in character. It pointed out that these two notions overlap, and it is inevitable and sometimes normal for trade-union publications to take a stand on questions having political aspects, as well as on strictly economic or social questions. (See the 1996 Digest, para. 166.)”

The American Convention on Human Rights has a special Additional Protocol concerning economic, social and cultural rights, the “Protocol of San Salvador”. Adopted and opened for signature on 17 November 1988, it entered into force on 16 November 1999. Article 8 of that Protocol, entitled “Trade-union rights” reads as follows:

“1. The States Parties shall ensure:

(a) The right of workers to organise trade unions and to join the union of their choice for the purpose of protecting and promoting their interests. As an extension of that right, the States Parties shall permit trade unions to establish national federations or confederations, or to affiliate with those that already exist, as well as to form international trade-union organisations and to affiliate with that of their choice. The States Parties shall also permit trade unions, federations and confederations to function freely;

(b) The right to strike.

The exercise of the rights set forth above may be subject only to restrictions established by law, provided that such restrictions are characteristic of a democratic society and necessary for safeguarding public order or for protecting public health or morals or the rights and freedoms of others. Members of the armed forces and the police and of other essential public services shall be subject to limitations and restrictions established by law.

No one may be compelled to belong to a trade union.”

In its Advisory Opinion OC-5/85, the Inter-American Court of Human Rights emphasised the fundamental nature of freedom of expression for the existence of a democratic society, stressing among other things that freedom of expression was a sine qua non for the development of trade unions. It found as follows (paragraph 70 of the Opinion):

“Freedom of expression is a cornerstone upon which the very existence of a democratic society rests. It is indispensable for the formation of public opinion. It is also a conditio sine qua non for the development of political parties, trade unions, scientific and cultural societies and, in general, those who wish to influence the public. It represents, in short, the means that enable the community, when exercising its options, to be sufficiently informed. Consequently, it can be said that a society that is not well informed is not a society that is truly free.”

Comparative-law research has shown that the disciplinary powers of employers in the member States of the Council of Europe are very diverse. There is a convergence of legal systems among the thirty-five countries examined: they all provide for and organise employees’ freedom of expression and trade-union freedom, usually by means of norms of constitutional value, or, where that is not the case, by legislative regulations. Employees serving as representatives benefit from special protection to help them discharge their duties. The regulations in all countries, in order to reconcile the exercise of this right with the essential rights and freedoms of others, fix rules providing for penalties in cases of abuse of the right to freedom of expression. The powers vested in employers allow, if necessary, for the exercise of disciplinary action against an employee or staff member whose conduct can be characterised as improper exercise of his freedom of expression. The case-law in such matters is consistent and shows that there is a systematic examination of proportionality between the dismissal and the conduct on which it is based.

The domestic-law instruments provide for the punishment of any conduct by an employee that is capable of infringing the rights and freedoms of others.

The relevant rules may, firstly, be laid down by a Criminal Code, or by provisions concerning the possibility of bringing an action to establish liability. In most cases, criminal notions such as defamation, damage to honour or reputation, or insults will enable the person claiming to be a victim of such infringement to bring proceedings to establish the liability of the person who made the comments at issue.

Rules in Labour Codes or norms applicable to public servants will also govern the exercise of freedom of expression of staff members, and if necessary provide for the punishment of any abuse. Similar limitations may be imposed on public officials, whether or not they have “civil servant” status.

Disciplinary authority is one of the essential prerogatives of the employer, whether private or public. In this connection, employers have a broad discretion to impose the sanction that they consider the best adapted to the accusations against the employee; the scale of possible sanctions encompasses the power to dismiss a person who has seriously compromised the interests of the company or the public service. In parallel, this power of dismissal is accompanied by a prohibition on dismissing employees on grounds relating to trade-union activity. A measure of dismissal may be based on misconduct or on a legitimate ground. In the first case, it relates to a given – identified – form of conduct. In the second, the conduct is considered in general terms.

The proportionality of a measure of dismissal in relation to the conduct of the employee concerned underlies all the legislation analysed.

The applicable law in the States examined shows that any abuse of the freedom of expression afforded to employees or public servants is always regarded as a reprehensible fact capable of justifying disciplinary measures that could go as far as dismissal. For that purpose, factual elements of an objective nature are taken into account, such as: (i) the seriousness of the misconduct; and (ii) the characterisation of the comments, the extent of their publication, and also certain subjective elements. The latter include the personal situation of the employee, any abuse of freedom of expression and the question whether the conduct falls outside “normal” trade-union activity.

In all the countries studied, the general rules are clear and allow the employee’s right to freedom of expression to be balanced against the rights and prerogatives of the employer. Their implementation is more problematic, since a restriction on a fundamental right can only be accepted if, having regard to the measure decided, it is proportionate to the aim pursued. Only through a case-by-case approach is it possible to grasp the substance of the jurisprudential solution adopted in each type of situation.


Preliminary objections dismissed (non-exhaustion of domestic remedies, abuse of the right of petition);Violation of Art. 6-1;Violation of P1-1;Not necessary to examine Art. 13;Inadmissible under Art. 3;Pecuniary damage - reserved;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant was born in 1925 and lives in Chişinău.

In 1941 the Soviet authorities nationalised the house owned by his parents. In the same year his family was deported to Russia and to Uzbekistan.

On 8 December 1992 the Moldovan Parliament enacted Law No. 1225-XII “on the rehabilitation of the victims of the political repression committed by the totalitarian communist occupying regime”. The Law enabled the victims of the Soviet repression to claim restitution of their confiscated or nationalised property.

In 1997 the applicant lodged an action with the Centru District Court (Judecătoria Sectorului Centru) by which he sought the restitution of his parents' house. As the former tenants of the house had purchased it from the State, the applicant sought a judicial ruling declaring the purchase contracts null and void. He also requested the eviction of all the occupants of the house.

On 25 June 1997 the Centru District Court found in favour of the applicant and ordered the restitution of the house. It declared null and void the contracts by which the house had been sold to the tenants. The court further ordered the Municipal Council to evict all the occupants, and indicated that the Municipal Council was to provide them with alternative accommodation.

The Municipal Council, the Ministry of Privatization and the occupants lodged an appeal with the Chişinău Regional Court (Tribunalul Municipiului Chişinău) against the judgment of the Centru District Court. On 5 November 1997 the Chişinău Regional Court dismissed the appeal and upheld the judgment with some textual amendments. Since nobody lodged an appeal in cassation, the judgment of 5 November 1997 became final.

In 1999, 2000 and 2001 the bailiff assigned to the case brought proceedings against the Municipal Council for failure to comply with the judgment of 5 November 1997 along with twenty-six similar judgments.

On 28 December 1999 the Centru District Court issued a decision by which a fine of 18 Moldovan lei (MDL) (the equivalent of EUR 1.53 at the time) was imposed on the Head of the Housing Division of the Municipal Council for failure to comply with the judgments.

On 25 August 2000 the same court issued a decision by which it imposed a fine of MDL 1,800 (the equivalent of EUR 161 at the time) on the Municipal Council. The court found inter alia that the shortage of funds and the lack of available apartments could not be relied upon by the Municipal Council to justify the failure to comply with the above judgments.

The Municipal Council lodged an appeal against that decision and on 24 January 2001 the Chişinău Regional Court quashed it on the ground that the shortage of funds and the lack of available apartments had objectively impeded the Municipal Council from complying with the judgments.

On 23 February 2001 the Centru District Court issued a decision by which it imposed a fine of MDL 1,800 on the Municipal Council.

Between 1997 and 2002 the applicant lodged numerous complaints about the non-enforcement of the judgment of 5 November 1997 with the Municipal Council, Centru District Court and the Ministry of Justice. In their replies, the Municipal Council and the Ministry of Justice informed the applicant that due to the lack of funds for the construction of apartment buildings and due to the lack of available alternative accommodation for the evicted persons, the judgment of 5 November 1997 could not be complied with.

In April 2004 four occupants of the applicant's house lodged with the Chişinău Court of Appeal a request for revision of the judgments of 25 June 1997 and 5 November 1997. Relying on Article 449 of the new Code of Civil Procedure (see paragraph 21 below) they argued in their request that new information have become known to them. They also asked the court to extend the deadline for lodging the request in view of the fact that the new information had been obtained by them from the National Archives in April 2004.

On 26 May 2004 the Court of Appeal found in favour of the occupants, quashed the judgments of 25 June 1997 and 5 November 1997 and ordered the re-opening of the proceedings in the light of the newly discovered facts. The court also decided to extend the time limit for lodging the request.

The new facts relied upon by the Court of Appeal in its judgment were an issue of the Municipal Official Gazette of 1940, and a few certificates from the National Archives and from the Land Register dated April and May 2004. According to these documents, due to a change of numbers of the houses on the street, it was unclear whether the house provided for in the final judgments or another house belonged to the applicant's family. The Court of Appeal did not specify in its judgment whether Article 449 of the new Code of Civil Procedure had a retroactive effect; nor were reasons given for extending the time limit for the lodging of the revision request.

The relevant provisions of Law no. 1225-XII of 8 December 1992, as amended on 23 November 1994, read as follows:

“Section 12. Restitution of property to persons subjected to repression

(1) Any citizen of the Republic of Moldova who has been subjected to political repression and subsequently rehabilitated, shall have returned to him, at his request or at the request of his heirs, any property which was confiscated, nationalised or taken away from him in some other way. ...

(5) Any deed of sale and purchase or other form of transfer of a house, building or other construction or goods that have been confiscated, nationalised or taken away from a person who has been a victim of repression may, when made after his rehabilitation, be declared null and void by the courts on an application by the victim or his heirs.”

In 1998 a new paragraph was added to the above Article by virtue of Law No. 84-XIV of 8 July 1998, which reads as follows:

“(6) Any person evicted from a house that is the subject of a restitution order shall be provided upon his eviction with accommodation on a priority basis by the local public administration authorities, in accordance with the legislation.”

Article 325 of the Code of Civil Procedure, in force between 26 December 1964 and 12 June 2003 “the old Code of Civil Procedure”, reads as follows:

Final judgments ... can be revised in the following cases:

1) the discovery of new facts or circumstances, that were unknown and could not be known earlier by the parties to the proceedings;

Article 426, insofar as relevant, reads as follows:

“The creditor or the debtor against whom enforcement proceedings are pending may lodge an appeal against any action which the bailiff takes or refuses to take in the enforcement proceedings. ...”

Article 478 of the Civil Code, in force between 26 December 1964 and 12 June 2003 “the old Civil Code”, reads as follows:

“Full redress shall be provided by the State in the manner prescribed by law for damage caused to a natural or juristic person by the illegal action of the criminal-investigation organs, the prosecution service or the courts, regardless of whether a public servant from one of those bodies has been at fault.”

According to the Review of the Supreme Court of Justice of the Republic of Moldova (Buletinul Curţii Supreme de Justiţie a Republicii Moldova) for February 2003 (page 17), Article 478 of the old Civil Code, along with other relevant provisions of the Moldovan Law, was applicable in the following situations:

illegal detention, illegal arrest, illegal indictment, illegal conviction;

illegal search, seizure or distraint of goods within criminal proceedings;

illegal administrative arrest, illegal fining;

illegal operative investigative measures;

illegal seizure of accounting documents, money, stamps, blocking of accounts.

On 12 June 2003 a new Civil Code entered into force. Article 1404 of the new Civil Code reads as follows:

“(1) Damage caused by an unlawful administrative decision or as a result of a failure by a public authority or public official to act upon a request made within the statutory time-limit shall be made good by the public authority ....

(2) Individuals shall be entitled to claim general damages caused as a result of the acts foreseen in paragraph 1 of the present Article. (...)”

On 12 June 2003 a new Code of Civil Procedure entered into force. Article 449, insofar as relevant, reads as follows:

Grounds for revision

Revision may be requested:

c) When new and essential facts or circumstances have been discovered, that were unknown and could not be known earlier;

Article 450, in so far as relevant, reads as follows:

A revision request may be lodged:

c) within three months from the date on which the concerned person has come to know the essential circumstances or facts of the case which were unknown to him/her earlier and which could not have been known to him/her earlier....


Violation of Art. 6-1;Non-pecuniary damage - award

Alvina Gyulumyan;Corneliu Bîrsan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra

The applicant was born in 1938 and lives in Rīga.

From an unspecified date, the applicant, together with her partner V.M., made use of a plot of land in Carnikava parish. The rights to use the land were allocated to the latter by a decision of the Carnikava Municipality. The property consisted of a dwelling house with an extension, greenhouses and a garden. After the death of the applicant's partner in 2000 and the applicant's subsequent eviction from an apartment in Rīga, she continued to reside in the property in Carnikava parish and to gain an income by selling the products cultivated there.

In July 2005 the applicant found out that the dwelling house, greenhouses and the garden had been destroyed. She requested that criminal proceedings be instituted against the alleged perpetrator, P., who did not contest the allegations.

On 9 September 2005, having examined the applicant's complaints, the police officer of the Saulkrasti Police Department refused to institute criminal proceedings on the grounds that the rights to use the aforementioned property had passed to J.M. (the son of the late V.M.) and no complaints whatsoever had been received from him regarding the alleged destruction of the property.

From 2005 onwards the applicant has been repeatedly considered as a “low-income person” (maznodrošināta persona), as the amount of her old-age retirement benefit did not exceed 125 % of the established minimum monthly salary in the Republic of Latvia. From September 2004 to the present day the applicant has been renting an apartment in a social building where the monthly utilities charges have averaged LVL 25 (EUR 36) in the winter and, around LVL 12 (EUR 17) in the summer. Apart from receiving an old-age retirement pension in the amount of LVL 75.60 (EUR 107) (the amount at the material time), in 2006 and 2007, at the time of bringing the civil proceedings the applicant was also in receipt of the following municipality assistance: a housing allowance averaging LVL 3 (EUR 5) per month; two lump-sum payments together totalling LVL 50 (EUR 71) assigned to cover housing and utilities expenses; health insurance in the amount of LVL 45 (EUR 64) and a lump sum in the amount of LVL 20 (EUR 29) to improve the condition of her health.

On 29 September 2005 the applicant lodged a claim for damages against P. in the amount of LVL 171,110 (EUR 244,443) and asked the court for exemption from the court fee (also referred to as a State fee) in the amount of LVL 1,503.33 (EUR 2,148) owing to her poor financial situation. In support of her application, the applicant attached thereto a certificate confirming her low-income status.

On 3 October 2005, by a decision of the Rīga Regional Court, the applicant's claim for damages was dismissed on the grounds that she had failed to demonstrate that she had the right to use the aforementioned property.

On 8 November 2005, on the applicant's appeal, the Civil Chamber of the Supreme Court revoked the above decision and forwarded the matter for examination once again ,finding that:

“The Civil Law grants to everyone a right to claim damages. [I]n a situation where damage has been inflicted, everyone is entitled to come before a court in order to protect their infringed rights. [Thus], the applicant has a right to claim damages, and this should not be linked to her rights to [...] use the [property]”.

On 25 November 2005 the Rīga Regional Court partly upheld the applicant's request and reduced the amount of the court fee to LVL 100 (EUR 143).

On 1 March 2006 the Civil Chamber of the Supreme Court dismissed the applicant's ancillary complaint whereby she requested a further reduction in the court fee. The court noted that the claim concerned material damages and that there was no ground for a further reduction. It noted inter alia:

“Pursuant to section 43 § 4 of the Law of Civil Procedure the applicant can ask to postpone payment of the court costs allocated to State revenue, or divide payment thereof into instalments.”

Subsequently the applicant asked for postponement of payment of the fee until the court adopted a decision concerning her claim. On 12 April 2006 the Rīga Regional Court dismissed the applicant's request, noting:

“Section 43 § 4 of the Law of Civil Procedure authorises the court to postpone or divide into instalments only those court costs which had been allocated to State revenues, [and it does not authorise] the postponement of [the paying of] State fees at the time of lodging a claim”.

On 7 September 2006 the Civil Chamber of the Supreme Court dismissed the applicant's complaint and upheld the lower court's decision.

On 12 January 2007 the applicant lodged an identical claim for damages and asked to be exempted from payment of the court fee. She argued that her financial situation was poor, that her property had been destroyed, and her only income was an old-age pension.

On 17 January 2007, the Rīga Regional Court partly upheld the applicant's request and again reduced the fee to LVL 100 (EUR 143), taking account of the reasoning underpinning the decision adopted on 25 November 2005 by the Rīga Regional Court in identical circumstances.

In an ancillary complaint, the applicant appealed against the partial reduction of the court fee and explained that her monthly old-age pension was about LVL 75.60 (EUR 107), from which she had to clear the rent and utilities arrears for the apartment she had been evicted from.

On 5 March 2007 the Civil Chamber of the Supreme Court, in a final decision, upheld the decision of the lower court, noting that there were no grounds for a further reduction of the State fee or complete exemption. It stated inter alia that:

“Pursuant to section 43 § 4 of the Law of Civil Procedure the applicant can ask to postpone payment of court costs as allocated to State revenues, or divide payment thereof into instalments.”

The court subsequently set a time-limit of 7 May 2007 by which the applicant was obliged to rectify the deficiencies of her claim, i.e. add proof of payment of the court fee.

According to the Government, the decision was served on the applicant not later than 12 March 2007. According to the applicant, she received the above decision on 14 May 2007.

Section 33 Costs of adjudication:

Section 34 State (court) fees:

(1) For each statement of claim – original claims or counterclaims, applications of a third person statement of claim with an independent claim regarding the subject-matter of the dispute, submitted in a procedure which has already commenced, applications in special adjudication procedure matters, and other claims applications provided for in this Section submitted to the court – a State fee shall be paid in the amount set out as follows:

Section 43 Exceptions from general provisions regarding court costs:

(4) A court or a judge, upon considering the material situation of a natural person, shall exempt him or her partly or fully from the payment of court costs into State revenues, as well as postpone payment of court costs allocated to State revenues, or divide payment thereof into instalments.

Section 56¹ provides that in a situation where court documents are sent by post, it ought to be assumed that a document will reach the recipient within seven days following the day on which it was posted.

Section 133 § 5 provides that when a civil claim has not been allowed, the applicant bringing the claim is not prevented from repeatedly submitting an identical claim in compliance with the general procedures prescribed in this Law.

According to paragraph 3.1., a “low-income status” is, inter alia, that granted to an individual who receives an old-age pension, resides alone, and whose monthly income does not exceed 125% of the minimum salary as prescribed by law. Besides, in order to be granted low-income status, the person has to prove that she or he does not own a property that could be used to generate income and that she or he has no debts and is not owed money.


Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

The applicant was born in 1969 and is currently in Frosinone Prison.

On 28 November 1999 the applicant was discovered in possession of a package containing 485 grams of heroin and was arrested by the Rome carabinieri. Proceedings were instituted against him for drug trafficking. On 23 December 1999 the applicant appointed a lawyer of his own choosing, Mr M., who represented him throughout the proceedings.

The applicant subsequently requested, through the intermediary of his lawyer, adoption of the summary procedure (giudizio abbreviato) provided for in Articles 438 to 443 of the Code of Criminal Procedure (“the CCP”). The representative of the Public Prosecutor’s Office gave a favourable opinion. The Rome preliminary hearings judge, taking the view that the charges against the applicant could be determined on the basis of the steps in the proceedings taken at the preliminary investigation stage (allo stato degli atti) ordered that the summary procedure be adopted.

At the private hearing held on 24 March 2000 in the presence of the applicant, the latter, through the intermediary of his lawyer, pleaded not guilty on the ground that the drugs had been intended for his personal use and not for sale.

In a judgment of 24 March 2000 the Rome preliminary hearings judge sentenced the applicant to six years’ imprisonment and a fine of 40,000,000 lire (approximately 20,658 euros). He observed that the quantity of drugs permitted for personal use must not exceed what was required to meet immediate needs. At the time of his arrest, the applicant had just purchased a quantity corresponding to more than 8,000 average daily doses.

The applicant appealed against the judgment, reiterating the arguments adduced at first instance. He contended that interpreting the law on drugs in a way that penalised drug users was in breach of the Constitution.

On 1 September 2000 Mr M. was informed that the hearing had been set down for 3 November 2000. On that day Mr M. objected to the continuation of the proceedings in the absence of his client and requested that the latter be brought from the prison to the hearing room. The Rome Court of Appeal dismissed his request, observing that the applicant had not informed the authorities in advance that he wished to participate in the appeal proceedings.

In a judgment of 3 November 2000 the Court of Appeal upheld the judgment at first instance.

The applicant appealed on points of law. He alleged that the appeal judges had not allowed him to attend his trial and that the summons to appear at the appeal hearing had not been translated into Arabic.

In his final submissions, the public prosecutor requested that the impugned decision be set aside.

In a judgment of 24 January 2002 the Court of Cassation dismissed the applicant’s appeal. It observed that neither the Convention nor the CCP required the steps in the proceedings to be translated into the language of a non-national defendant in Italy. However, the latter had the right to be assisted free of charge by an interpreter in order to be able to understand the charges against him and follow the progress of the proceedings. As to the other complaints, the Court of Cassation observed that the presence of the defendant was not required under the summary procedure, the adoption of which had been requested by the applicant himself of his own free will. Furthermore, the applicant had not made clear his wish to participate in the appeal hearing.

The summary procedure is governed by Articles 438 to 443 of the CCP.

Under the terms of these provisions as they applied at the time when the applicant was arrested, the defendant could request, subject to a favourable opinion from the representative of the Public Prosecutor’s Office, that the case be decided at the preliminary hearing. If the judge deemed that the charges could be determined on the basis of the steps performed at the preliminary investigation stage and recorded in the file held by the Public Prosecutor’s Office (fascicolo del pubblico ministero), he ordered the summary procedure to be adopted. The summary procedure was subsequently amended by Law no. 479 of 16 December 1999. Under the new rules, a favourable opinion from the representative of the Public Prosecutor’s Office is no longer required, and the judge cannot reject the request for the summary procedure to be adopted if the defendant does not request that any evidence be produced (integrazione probatoria).

Where the summary procedure is adopted, the hearing takes place in private and is devoted to hearing the arguments of the parties, which must be based on the documents contained in the file held by the Public Prosecutor’s Office. If the judge decides to convict the defendant, the sentence is reduced by onethird (Article 442 § 2). The judgment is delivered in private.

Under the terms of Article 597 § 1 of the CCP:

“The appeal judge shall be empowered to rule (la congnizione del procedimento) solely (limitatamente) on those aspects of the decision referred to in the grounds of appeal.”


Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens

The applicants are 16 Russian nationals, whose names and dates of birth are shown in the Annex. The Russian Government (“the Government”) are represented by Mr A. Savenkov, First Deputy Minister of Justice, and Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.

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

The applicants are victims of the Chernobyl nuclear disaster who live in the Rostov Region of Russia. Under domestic law they were entitled to social benefits. Because the authorities had failed to pay the benefits in full or in time, the applicants sought relief in courts of the Rostov Region. The courts held for the applicants, the judgments became binding, but their full enforcement was delayed. Details of the judgments are shown in the Annex.