CASE OF GREENS AND M.T. v. THE UNITED KINGDOM

Violation of Article 3 of Protocol No. 1 - Right to free elections-{general} (Article 3 of Protocol No. 1 - Vote);No violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Respondent State to take measures of a general character (Article 46 - Pilot judgment;General measures);Non-pecuniary damage - finding of violation sufficient

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

The first applicant, Mr Greens, was serving a determinate sentence of imprisonment at HM Prison Peterhead at the time his application was lodged with the Court. He was eligible for release on parole from 29 May 2010. It is not known whether he has been released on parole. The second applicant, M.T., is currently serving a determinate sentence of imprisonment at HM Prison Peterhead. According to information provided by the Government, he is scheduled to be released in November 2010.

On 23 June 2008 the applicants posted voter registration forms to the Electoral Registration Officer (“ERO”) for Grampian. They sought registration on the electoral register at their address in HM Prison Peterhead.

On 3 July 2008, the ERO replied referring to previous applications for registration which were refused in 2007 under sections 3 and 4 of the Representation of the People Act 1983, as amended, (see paragraph 19 and 21 below) on the basis of the applicants' status as convicted persons currently detained. The ERO requested clarification of whether there had been a change in circumstances in the applicants' cases.

On 5 August 2008 the applicants wrote to the ERO arguing that following the Court's decision in Hirst v. the United Kingdom (no. 2) [GC], no. 74025/01, ECHR 2005IX, and the declaration of incompatibility made by the Registration Appeal Court in the case of Smith v. Scott (see paragraphs 27-30 below), the ERO was obliged to add their names to the electoral register.

On 12 August 2008, the ERO refused the applicants' registration applications on the basis of their status as convicted persons detained in a penal institution.

By letter of 14 August 2008 the applicants informed the ERO of their wish to appeal to the Sheriff Court against the refusal.

On 12 September 2008 the Sheriff considered the applicants' appeals together with appeals in a number of other similar cases and ordered written representations to be lodged.

On 25 September 2008 the applicants wrote to the court summarising their position. They provided further submissions on 1 October 2008. The applicants alleged that legal aid was not available for the proceedings and they therefore represented themselves.

On 10 November 2008 the applicants' appeals were refused.

On 20 November 2008 another serving prisoner whose appeal was also refused on 10 November 2008, Mr Beggs, applied to Aberdeen Sheriff Court to request that it state a case for the opinion of the Registration Appeal Court (see paragraph 22 below). On 30 December 2008, the Sheriff refused to state a case. Mr Beggs subsequently applied to the Court of Session for an order requiring the Sheriff to state a case, on the ground that the Sheriff had erred in law in refusing to do so. The most recent information available to the Court was that those proceedings were pending. It is not clear whether that remains the case.

On 4 June 2009, elections to the European Parliament took place. The applicants were ineligible to vote.

On 6 May 2010 a general election took place in the United Kingdom. The applicants were ineligible to vote.

Section 3 of the Representation of the People Act 1983 (“the 1983 Act”) provides:

“(1) A convicted person during the time that he is detained in a penal institution in pursuance of his sentence ... is legally incapable of voting at any parliamentary or local election.”

The disqualification does not apply to persons imprisoned for contempt of court (section 3(2)(a)) or to those imprisoned only for default in, for example, paying a fine (section 3(2)(c)).

Section 4 of the 1983 Act provides:

“(1) A person is entitled to be registered in the register of parliamentary electors for any constituency or part of a constituency if on the relevant date he–

(a) is resident in the constituency or that part of it;

(b) is not subject to any legal incapacity to vote (age apart);

(3) A person is entitled to be registered in the register of local government electors for any electoral area if on the relevant date he–

(a) is resident in that area;

Sections 56-57 set out that there is a right of appeal against a decision of the registration officer. In Scotland, a further appeal lies on any point of law from a decision of the Sheriff to a court of three judges of the Court of Session (known as the “Registration Appeal Court”).

Section 8(1) of the European Parliamentary Elections Act 2002 (“the 2002 Act”) provides that a person is entitled to vote at an election to the European Parliament if he is within any of subsections (2) to (5) of section 8. These subsections provide, in so far as relevant, as follows:

“(2) A person is within this subsection if on the day of the poll he would be entitled to vote as an elector at a parliamentary election ...

(5) A person is within this subsection if he is entitled to vote in the electoral region by virtue of the European Parliamentary Elections (Franchise of Relevant Citizens of the Union) Regulations 2001 (S.I. 2001/1184) (citizens of the European Union other than Commonwealth and Republic of Ireland citizens).”

Section 3 of the Human Rights Act 1998 (“the Human Rights Act”) provides as follows:

“(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.

(2) This section-

(a) applies to primary legislation and subordinate legislation whenever enacted;

Section 4 of the Act provides:

“(1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right.

(2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility.

Finally, section 6(1) of the Act provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right. Section 6(2) clarifies that:

“Subsection (1) does not apply to an act if–

(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or

(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.”

In Smith v. Scott, the Registration Appeal Court considered the refusal of the ERO for Clackmannanshire, Falkirk and Stirling to enrol a convicted prisoner on the electoral register on the basis of sections 3 and 4 of the 1983 Act, in anticipation of elections to the Scottish Parliament. The Secretary of State conceded in the proceedings that in light of the judgment of this Court in Hirst section 3(1) of the 1983 Act was incompatible with Article 3 of Protocol No. 1 to the Convention and that the appellant's rights under that Article had been violated. He also accepted that for the purposes of Article 3 of Protocol No. 1 the Scottish Parliament was a legislature. The court, handing down its judgment on 24 January 2007, summarised the matters for examination in the following terms:

“1. Since section 3(1) of the 1983 Act, giving the words of that provision their ordinary meaning, was incompatible with Article 3 of the First Protocol, the Court should consider whether it was possible, in terms of section 3(1) of the Human Rights Act, to read it down in such a way as to make it compatible. If that was possible, it should be done and the appeal should be allowed.

If, however, that was not possible, then the appeal would be refused but the Court should consider whether it could and should make a declaration of incompatibility in respect of section 3(1) of the 1983 Act in terms of the Human Rights Act section 4(2). If that could be done, it should be.

If the Court did not take that course, it should consider, in the context of the requirement in terms of section 6 of the Human Rights Act for the Court not to act in a manner incompatible with the appellant's Convention rights, whether by refusing the appeal and providing the appellant with no remedy it would be acting in breach of that statutory requirement. If it would, then the Court was obliged to give such remedy as was open to it within its powers at common law or under any statute. Such a remedy would include granting a declarator that the appellant's rights under Article 3 of the First Protocol of the Convention had been violated. It was open to the Court in the exercise of its inherent jurisdiction to grant such a declarator.”

Counsel for the appellant argued that if there was some “possible” interpretation (or “reading down”) of section 3(1) of the 1983 Act which would remove the incompatibility identified by this Court in Hirst, the Registration Appeal Court should adopt it. He considered that insertion of words to the effect that any ban on prisoner voting “would apply at the discretion of the sentencing judge” would qualify, but not contradict, the “grain of the legislation” and that the case should accordingly be resolved along those lines. Counsel for the respondent submitted that while section 3 of the Human Rights Act empowered the court to interpret legislation, where possible, in a certain way, it did not entitle the court to amend or reverse clear legislative provisions, nor otherwise to usurp the legislative function of Parliament. The court summarised counsel's argument as follows:

“26. ... section 3(1) of the 1983 Act clearly provided for a blanket ban on voting which applied to all convicted prisoners serving custodial sentences. There was thus no 'grain of the legislation' which could properly serve as a starting point for any interpretation designed to clothe some or all of such prisoners with voting rights. Over and above that, it was necessary to recognise the complexity of the issues which had been opened up by the decision of the European Court of Human Rights in Hirst, and the extensive consultation which would have to be undertaken before the Government could form a view as to the appropriate way forward. Since the Convention rights conferred by Article 3 of the First Protocol were in no way absolute, there were many possible levels at which the line might be drawn for the enfranchisement or disenfranchisement of convicted prisoners in different categories, and it could be no part of this Court's function to make an uninformed choice among such alternatives.”

The court continued:

“27. Against that background, we are clearly of the opinion that the appellant's submission must be rejected and we decline to 'read down' section 3(1) of the 1983 Act in the manner proposed ... In our opinion to read down section 3(1) of the 1983 Act as providing for full or partial enfranchisement of convicted prisoners serving custodial sentences would be ... to depart substantially from a fundamental feature of the legislation. Without the benefit of consultation or advice, this Court would, in a real sense, be legislating on its own account, especially in view of the wide range of policy alternatives from which a 'possible' solution would require to be selected ...”

The court, however, made a declaration of incompatibility in respect of section 3(1) of the 1983 Act.

On 20 April 2007, the Outer House of the Court of Session considered the disenfranchisement of prisoners in judicial review proceedings challenging the legality of an order made by the Secretary of State for Scotland regarding the organisation of the elections to the Scottish Parliament in May 2007 and the involvement of the Scottish Executive in those elections. The challenge was based on the provisions of the Scotland Act 1998 and in particular the requirement that Scottish legislation and acts of the Scottish Executive be compatible with the Convention. Lord Malcolm rejected the claim for interdict (injunction), emphasising that it was for Parliament to decide whether to remove the incompatibility between domestic legislation and the Convention.

On the question of declaratory relief, he added:

“11. I should record that I was asked to repeat the declarator of incompatibility pronounced in Smith. There is no dispute in these petitions as to the incompatibility between section 3 of the 1983 Act and article 3 of the first protocol. The discussion focused on other matters. That incompatibility has been authoritatively determined in Smith. I am satisfied that a further declarator in these proceedings is unnecessary and inappropriate ...”

In the case of Toner and Walsh, two convicted prisoners sought, in light of Hirst, a declaration that the disqualification of convicted prisoners from voting did not apply to elections to the Northern Ireland Assembly. After careful consideration of the judgment of this Court in Hirst and the decision of the Registration Appeal Court in Scott v. Smith, Gillen J held:

“9(iv). I consider that the [Strasbourg] court has deliberately left the method of compliance in the hands of the Contracting States subject to the overriding veto of the court ... Accordingly I see nothing intrinsically objectionable about the various options being explored by the Government proposals contained in the consultation paper of 14/12/06 which makes up its response to the Hirst decision. The consequence of this is that not only is Mr Sweeney [Deputy Director, Rights and International Relations in the Political Directorate at the Northern Ireland Office] entitled to say ... that the Government is unlikely to propose that prisoners serving sentences as long as those of the applicants should become entitled to vote whilst detained, but I am left singularly unconvinced that the applicants are currently or will ever be able to lay claim to a right to vote. I reject the argument of Mr Larkin [for the applicants] that because a blanket prohibition on prisoners is incompatible with the Convention that somehow converts into the proposition that all prisoners are currently entitled to vote until the vacuum is filled. In my view that conforms neither with principle nor logic and certainly does not find any authority in Hirst which expressly recognises that restraints on Article 3 Protocol 1 are justifiable provided they pursue a legitimate aim and are proportionate.”

In judicial review proceedings brought in the High Court in Chester v. Secretary of State for Justice and another, the claimant, a prisoner, argued that his disqualification from voting in the then pending June 2009 European Parliament elections breached his rights under Article 3 of Protocol No. 1 and under European Union law. He was granted permission to bring his claim on 27 March 2009. At the hearing before Burton J, he argued that section 8 of the 2002 (see paragraph 23 above) Act should be “read down” in order to enable him to vote or, in the alternative, a declaration of incompatibility as regards section 3 of the 1983 Act and section 8 of the 2002 Act should be made. He accepted that no argument could be mounted that a “reading down” of section 3 of the 1983 Act would be feasible, within the parameters of the Human Rights Act.

The claim was dismissed by Burton J on 28 October 2009. As to the possibility of “reading down” section 8, Burton J held:

“29. ... I am being asked effectively to draft fresh legislation by bolting on to existing legislation additional words which not only dramatically change its nature, but are imminently to be considered by the Legislature. Two competing alternatives are presented to me for consideration. One of these affects the franchise by allowing all convicted prisoners to vote. The other amends the statute so as to allow one particular category of convicted prisoners, the post-tariff lifers, to vote, while still retaining a bar on all other prisoners, including those only serving very short terms of imprisonment, to whom it seems, on any basis, the Government is proposing that the franchise should be extended; and to make such differentiation simply because the claimant in this case happens to be one of the category in whose favour the statute would now be amended.

The first proposal is not acceptable, not least for the same reasons as were enunciated by Gillen J in paragraph 9(iv) of his judgment [in Toner and Walsh], which I have cited earlier. Enfranchisement of all prisoners, including those with a minimum term/tariff of life which may or may not be what the legislature after full consultation and discussion of all the issues may consider, but it would be a dramatic change, was not, as Gillen J points out, required by Hirst. As for the alternative, selection of one particular category of prisoner simply because one of that category happens to be the Claimant, to effect what would in fact be a substantial amendment of the legislation, but only as to one category of convicted prisoner, cannot be an appropriate exercise of this jurisdiction. It would lead to piecemeal and possibly continuous amendments, without consideration by Parliament, of legislation dealing with matters of important social policy, all depending upon which claimant happened to be before the Court at any one time.”

Burton J concluded that if and in so far as section 8 of the 2002 Act was incompatible with the Convention or with EU law, reading it down was not an available remedy.

As to whether it would be appropriate to make a declaration of incompatibility in respect of section 3 of the 1983 Act, Burton J concluded:

“34. ... I am content to say that there is no need for any declaration to be made by yet another court, as one has already been made which is binding on the UK Government.

However, towards the end of his submissions, Mr Southey [for the claimant] put forward another basis upon which to support his case for such a declaration. He submitted that, as the grant of a declaration is discretionary, there is no reason why it cannot be made again, if it is made on different grounds. He submits that I can and should make a declaration that s3 of the 1983 Act is incompatible with the ECHR, and do so by reference to the fact that it excludes (together with all other convicted prisoners) post-tariff lifers. Then there would be some point in making the declaration, given that the Government's proposed legislation seems, subject to what may have emerged from the second consultation, to be intended not to make any change in their position. Hence, it would be a declaration as to the incompatibility with regard to the present legislation, but to be made because it does not appear as if there is going to be any amelioration of his client's position by reference to the proposed legislation. This would effectively simply amount to the declaration of incompatibility being a peg upon which Mr Southey can hang his substantive submissions, to which I shall come in a moment. Subject however to that argument ... I reject his suggestion that I should make a declaration of incompatibility.”

In respect of the application for a declaration of incompatibility as regards section 8 of the 2002 Act, Burton J said:

“43. I am satisfied that, but for Mr Southey's 'proposed legislation argument', this course is wholly inappropriate as a matter of discretion:

(i) Simply as a matter of context and background, there is no presently intended European election, to which alone s8 would apply ... These proceedings were brought at the time when the June 2009 European elections were still in the future. There will now not be further such elections for 5 years. By that time, whatever the Claimant's personal position may be, new legislation, whatever it may be, will be well in place (and will have been capable of challenge, if appropriate).

(ii) More significantly, it is plain that the challenge to s8 is purely parasitic to the real challenge, which is to s3. S8 merely provides that (with the exceptions discussed) the same people can vote in European elections as can vote in UK elections. When there is new legislation in place of s3, s8 will automatically follow. A declaration has already been made in relation to s3, upon which s8 wholly hangs, and legislation is to be put before Parliament with the intention of curing the contravention of the ECHR.

For the reasons I have given, namely that there is already a declaration of such incompatibility in relation to the governing section, s3, upon which s8 entirely depends, the same reasons drive me to conclude that there is no basis in the exercise of my discretion to grant a declaration of incompatibility in relation to s8, any more than there is to s3 ...”

On the need for a further declaration of incompatibility as a result of the apparently limited scope of the proposed legislation, Burton J considered that any declaratory or other relief which was intended to interfere with the process by which new legislation resulting from the consultation process was put before and debated by Parliament was inappropriate and was not to be granted. In any case, he concluded that the court was:

“... ill-equipped to decide this issue of social policy, and certainly ill-equipped to legislate and provide for the consequences of any view, plain and obvious or otherwise, as to which category of prisoners ought to be enfranchised as a result of the removal of the absolute ban.”

The claimant appealed and on 13 May 2010, was granted leave to appeal by the Court of Appeal. The appeal was heard on 3 November 2010 and the judgment is pending.

In its recent report, “Enhancing Parliament's role in relation to human rights judgments”, 15th Report of 2009-10, published in March 2010, a parliamentary committee, the Joint Committee on Human Rights, considered domestic developments in the execution of the Grand Chamber's judgment in Hirst and noted:

“108. ... our overriding disappointment is at the lack of progress in this case. We regret that the Government has not yet published the outcome of its second consultation, which closed almost 6 months ago, in September 2009. This appears to show a lack of commitment on the part of the Government to proposing a solution for Parliament to consider.

It is now almost 5 years since the judgment of the Grand Chamber in Hirst v UK. The Government consultation was finally completed in September 2009. Since then, despite the imminent general election, the Government has not brought forward proposals for consideration by Parliament. We reiterate our view, often repeated, that the delay in this case has been unacceptable.

... Where a breach of the Convention is identified, individuals are entitled to an effective remedy by Article 13 ECHR. So long as the Government continues to delay removal of the blanket ban on prisoner voting, it risks not only political embarrassment at the Council of Europe, but also the potentially significant cost of repeat litigation and any associated compensation.”

On 2 November 2010 a short debate took place in the House of Commons following a question to the Government regarding their plans to give prisoners the right to vote. In the course of that debate, the Minister emphasised that the Government were under a legal obligation to change the law following the judgment in Hirst. He said that the Government were actively considering how to implement the judgment and that once decisions had been made, legislative proposals would be brought forward.

On 3 November 2010, in response to a question in the House of Commons, the Prime Minister also emphasised that the Government were required to come forward with proposals to implement the Court's judgment in Hirst.

On 3 December 2009, in the context of their supervision of the execution of the Court's judgment in Hirst, the Committee of Ministers adopted Interim Resolution CM/ResDH(2009)160, which stated as follows:

“The Committee of Ministers, ...

Recalling that, in the present judgment, the Court found that the general, automatic and indiscriminate restriction on the right of convicted prisoners in custody to vote, fell outside any acceptable margin of appreciation and was incompatible with Article 3 of Protocol No. 1 to the Convention;

Recalling that the Court, while acknowledging that the rights bestowed by Article 3 of Protocol 1 are not absolute, expressly noted that in the present case the blanket restriction applied automatically to all prisoners, irrespective of the length of their sentence, the nature or gravity of their offence and their individual circumstances;

Recalling further that the Court found 'no evidence that Parliament has ever sought to weigh the competing interests or to assess the proportionality of a blanket ban on the right of a convicted prisoner to vote';

Noting that the blanket restriction imposed by Section 3 of the Representation of the People Act 1983 remains in full force and effect;

Recalling that the United Kingdom authorities, in a revised Action Plan submitted in December 2006, committed to undertaking a two-stage consultation process to determine the measures necessary to implement the judgment of the Court, with a view to introducing the necessary draft legislation before Parliament in May 2008;

Noting that the United Kingdom authorities have provided detailed information as regards the consultation process, and that they are committed to continuing to do so;

Noting however that the second consultation stage ended on 29 September 2009, and the United Kingdom authorities are now undertaking a detailed analysis of the responses thereto, in order to determine how best to implement a system of prisoner enfranchisement based on the length of custodial sentence handed down to prisoners,

EXPRESSES SERIOUS CONCERN that the substantial delay in implementing the judgment has given rise to a significant risk that the next United Kingdom general election, which must take place by June 2010, will be performed in a way that fails to comply with the Convention;

URGES the respondent state, following the end of the second stage consultation period, to rapidly adopt the measures necessary to implement the judgment of the Court;

On 4 March 2010 the Committee of Ministers adopted a decision in which they noted that notwithstanding the Grand Chamber's judgment in Hirst, a declaration of incompatibility with the Convention under the Human Rights Act by the highest civil appeal court in Scotland in the case of Smith v. Scott and the large number of persons affected, the automatic and indiscriminate restriction on prisoners' voting rights remained in force; reiterated their serious concern that a failure to implement the Court's judgment before the general election and the increasing number of persons potentially affected by the restriction could result in similar violations affecting a significant category of persons, giving rise to a substantial risk of repetitive applications to the European Court; and strongly urged the authorities rapidly to adopt measures, even if of an interim nature, to ensure the execution of the Court's judgment before the then pending general election.

On 3 June 2010 the Committee of Ministers adopted a further decision in which they expressed profound regret that despite the repeated calls of the Committee, the United Kingdom general election had been held on 6 May 2010 with the blanket ban on the right of convicted prisoners in custody to vote still in place; and expressed confidence that the new United Kingdom government would adopt general measures to implement the judgment ahead of elections scheduled for 2011 in Scotland, Wales and Northern Ireland, and thereby also prevent further, repetitive applications to the European Court.

On 15 September 2010 the Committee of Ministers adopted their most recent decision on the execution of Hirst, in the following terms:

“The Deputies,

recalled that in the present judgment, delivered on 6 October 2005, the Court found that the general, automatic and indiscriminate restriction of the right of convicted prisoners in custody to vote, fell outside any acceptable margin of appreciation and was incompatible with Article 3 of Protocol No. 1 to the Convention;

recalled that since its 1059th meeting (June 2009), the Committee has urged the United Kingdom to prevent future, repetitive applications by adopting general measures to implement the judgment;

deeply regretted that despite the Committee's calls to the United Kingdom over the years to implement the judgment, the risk of repetitive applications to the European Court has materialised as the Court has communicated 3 applications to the government with a view to adopting the pilot judgment procedure and has received over 1 340 applications;

noted, that according to the information provided by the United Kingdom authorities during the meeting, the new government is actively considering the best way of implementing the judgment;

regretted, however, that no tangible and concrete information was presented to the Committee on how the United Kingdom now intends to abide by the judgment;

called upon the United Kingdom, to prioritise implementation of this judgment without any further delay and to inform the Committee of Ministers on the substantive steps taken in this respect;

highlighted in this connection that, within the margin of appreciation of the state, the measures to be adopted should ensure that if a restriction is maintained on the right of convicted persons in custody to vote, such a restriction is proportionate with a discernible and sufficient link between the sanction, and the conduct and circumstances of the individual concerned;

Article 20(2)(b) TFEU provides:

“2. Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties. They shall have, inter alia:

(b) the right to vote and to stand as candidates in elections to the European Parliament and in municipal elections in their Member State of residence, under the same conditions as nationals of that State;

Article 22(2) TFEU provides:

“Without prejudice to Article 223(1) and to the provisions adopted for its implementation, every citizen of the Union residing in a Member State of which he is not a national shall have the right to vote and to stand as a candidate in elections to the European Parliament in the Member State in which he resides, under the same conditions as nationals of that State. This right shall be exercised subject to detailed arrangements adopted by the Council, acting unanimously in accordance with a special legislative procedure and after consulting the European Parliament; these arrangements may provide for derogations where warranted by problems specific to a Member State.”

Article 223 TFEU provides:

“1. The European Parliament shall draw up a proposal to lay down the provisions necessary for the election of its Members by direct universal suffrage in accordance with a uniform procedure in all Member States or in accordance with principles common to all Member States.

The Council, acting unanimously in accordance with a special legislative procedure and after obtaining the consent of the European Parliament, which shall act by a majority of its component Members, shall lay down the necessary provisions ...”

To date, the Council has not adopted an instrument setting out a uniform election procedure. However, certain agreed principles are set out in the 1976 Act (see below).

Article 1 of the 1976 Act provides:

“1. In each Member State, members of the European Parliament shall be elected on the basis of proportional representation, using the list system or the single transferable vote.

Member States may authorise voting based on a preferential list system in accordance with the procedure they adopt.

Elections shall be by direct universal suffrage and shall be free and secret.”

The 1976 Act also contains provisions on, inter alia, the allocation of seats, campaign expenses, the term and nature of members' mandates and the organisation of elections.

Article 8 clarifies that:

“Subject to the provisions of this Act, the electoral procedure shall be governed in each Member State by its national provisions.

These national provisions, which may if appropriate take account of the specific situation in the Member States, shall not affect the essentially proportional nature of the voting system.”

Article 1 of Directive 93/109/EC stipulates that the directive lays down the detailed arrangements whereby citizens of the Union residing in a Member State of which they are not nationals may exercise the right to vote and to stand as a candidate in elections to the European Parliament.

Article 3 provides:

“Any person who, on the reference date:

(a) is a citizen of the Union ...;

(b) is not a national of the Member State of residence, but satisfies the same conditions in respect of the right to vote and to stand as a candidate as that State imposes by law on its own nationals,

shall have the right to vote and to stand as a candidate in elections to the European Parliament in the Member State of residence unless deprived of those rights pursuant to Articles 6 and 7.”

In so far as relevant, Article 9 provides:

In order to have his name entered on the electoral roll, a Community voter shall produce the same documents as a voter who is a national. He shall also produce a formal declaration ...

The Member State of residence may also require a Community voter to:

(a) state in his declaration under paragraph 2 that he has not been deprived of the right to vote in his home Member State;

Article 6 refers to the right to stand as a candidate. Article 7 allows the State of residence to verify whether a person seeking to exercise his right to vote under the Directive has been deprived of that right in the home State. If the information provided invalidates the content of the declaration made under Article 9, the State of residence is required to take the appropriate steps to prevent the person concerned from voting.

In a preliminary reference to the European Court of Justice (“ECJ”) in case C-106/89 Marleasing SA v La Comercial Internacional de Alimentacion SA, the ECJ was asked to consider the extent to which national courts were required to interpret national law in light of the wording and the purpose of an EC directive which had not been implemented by the Member State in question. The ECJ held that:

“... the Member States' obligation arising from a directive to achieve the result envisaged by the directive and their duty under Article 5 of the Treaty to take all appropriate measures, whether general or particular, to ensure the fulfilment of that obligation, is binding on all the authorities of Member States including, for matters within their jurisdiction, the courts. It follows that, in applying national law, whether the provisions in question were adopted before or after the directive, the national court called upon to interpret it is required to do so, as far as possible, in the light of the wording and the purpose of the directive in order to achieve the result pursued by the latter ...”


Violation of Art. 5-1;No violation of Art. 5-3;Non-pecuniary damage - finding of violation sufficient

Isabelle Berro-Lefèvre;Jean-Paul Costa;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger

The applicants were crew members on a merchant ship named the Winner, flying the Cambodian flag.

As part of the international effort to combat drug trafficking, the French authorities were informed that the ship might be carrying large quantities of drugs.

By diplomatic telegram dated 7 June 2002, the French embassy in Phnom Penh informed the Ministry of Defence in Paris that, in response to a request from the Central Office for the Repression of Drug Trafficking (“OCRTIS”) for authorisation to intercept the Winner, and at the embassy's request, the Cambodian Minister of Foreign Affairs had personally given his Government's agreement.

The Government produced a diplomatic note dated 7 June 2002, addressed by the Cambodian Ministry of Foreign Affairs to the French Embassy in Phnom Penh, stating:

“The Ministry of Foreign Affairs and International Cooperation (...), referring to its note no. 507/2002 dated 7 June 2002, has the honour formally to confirm that the Royal Government of Cambodia authorises the French authorities to intercept, inspect and take legal action against the ship Winner, flying the Cambodian flag (...) belonging (...) to the Marshall islands. (...) »

The commander of the frigate Lieutenant de Vaisseau Le Henaff was instructed by the French naval authorities to intercept the Winner.

On 13 June 2002, at 6 a.m., the frigate spotted a merchant ship travelling at slow speed through the waters off Cape Verde. It was not flying a flag, but was identified as the Winner. Its nationality was verified in accordance with international law and, as a security measure, a speedboat was lowered into the water. The merchant ship suddenly changed course, in an attempt to evade the frigate. When attempts were made to contact it on the international radio frequency, it remained silent. At the same time, the crew jettisoned packages over the stern into the sea. The frigate then identified itself and asked the Winner to stop, while signalling the international code SQ (“stop or I shall open fire”) ; no answer came and the ship was still not flying a flag, so a warning shot was fired, followed by further shots to stop it. At the same time the speedboat was ordered to recover the parcels that had been jettisoned. It only managed to recover one. Upon subsequent verification it was found to contain 80 to 100 kg of a narcotic substance resembling cocaine.

Three more parcels were thrown overboard. As the freighter had still not stopped and was manoeuvring to prevent the speedboat from pulling alongside, France's Maritime Prefect for the Atlantic ordered the frigate to fire directly at the Winner's bow. This caused the Winner to stop, and an armed commando team boarded it and took control of it by armed force. One of the crew members, who sustained a bullet wound, was evacuated onto the frigate, where he was treated by the ship's doctor before being transferred to Brest hospital, where he died a week later. The rest of the crew were confined to their quarters on board the Winner under military guard. A tug was sent out from Brest, under orders from the Maritime Prefect and at the request of the public prosecutor in Brest, to tow the Winner into Brest harbour, escorted by the frigate Commandant Bouan.

On 13 June 2002, at 11 a.m., the Brest public prosecutor referred the case to OCRTIS for examination under the flagrante delicto procedure. It emerged that the Greek coastguard had had the Winner under observation in connection with international drug trafficking in which Greek nationals were involved.

On 24 June 2002, the Brest prosecutor's office opened an investigation into charges, against persons unknown, of leading a group with the aim of producing, making, importing, exporting, transporting, holding, supplying, selling, acquiring or illegally using drugs and conspiring to import and export drugs illegally. Two investigating judges were appointed.

On 26 June 2002, at 8.45 a.m., the Winner entered Brest harbour under escort. The crew and cargo were handed over to the police, acting under instructions from one of the investigating judges, who immediately notified the persons concerned that they were being placed in police custody and informed them of their rights.

The Government submitted that the two investigating judges went to see each of the detainees after twenty-four hours and after forty-eight hours to inform them that their police custody was being extended.

On 28 June 2002, Mr Viorel Petcu, Mr Puiu Dodica, Mr Nicolae Balaban and Mr Nicu Stelian Manolache were charged and remanded in custody pending trial. On 29 June 2002 so were Mr Oleksandr Medvedyev, Mr Bory Bilenikin, Mr Georgios Boreas, Mr Sergio Cabrera Leon, Mr Guillermo Luis Eduar Sage Martínez and two other crew members (Mr Oleksandor Litetski and Mr Symeon Theophanous).

The above eleven persons applied to the Investigation Division of the Rennes Court of Appeal to have the evidence disallowed; relying in particular on Article 5 of the Convention, they complained that the Winner had been arrested illegally and that their detention on board for thirteen days had also been illegal. In a judgment of 3 October 2002, the court dismissed their appeal and held that there were no grounds for disallowing the evidence.

In its judgment the Investigation Division pointed out that the international effort to combat drug trafficking was governed by the United Nations Single Convention on Narcotic Drugs of 30 March 1961, the United Nations Convention on the Law of the Sea, signed at Montego Bay on 10 December 1982, and the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, signed in Vienna on 20 December 1988, all of which had been ratified by France. It considered that although Cambodia had not signed the Vienna Convention, Article 17.3 of which provided for derogations from the traditional principle of the “law of the flag State”, that did not prevent the French authorities from “requesting Cambodia's cooperation to obtain authorisation to intercept the Winner in order to put a stop to the drug trafficking in which all or part of its crew were suspected of engaging”, based on Article 108 of the Montego Bay Convention and “with reference” to the Convention of 30 March 1961. According to the Investigation Division, as the provisions of the Vienna Convention did not apply to Cambodia, it was for that State's authorities to ask the French authorities for the information they needed in order to determine, as they alone were entitled to do, whether the request for assistance was well founded. The court then held that the diplomatic telegram of 7 June 2002 from the French Embassy established the existence of “an agreement given without restrictions or reservations by the Government of Cambodia for the planned interception and all its consequences, and was authoritative until proven otherwise”.

However, the Investigation Division considered that the agreement in question did not dispense the French authorities from abiding by the rules of procedure set forth in the Vienna Convention and in Articles 12 et seq. of the Law of 15 July 1994 as amended. Nor, it pointed out, had the French authorities failed in that obligation in the circumstances. In the light of the reports drawn up by the commander of the Lieutenant de Vaisseau Le Henaff, the Investigation Division found that when the frigate had drawn within sight of the Winner the latter “was flying no flag” and its captain had “not only failed to answer the requests to identify the ship, in breach of the rules of international law, and failed to stop the ship, but [had] responded aggressively with a series of dangerous manoeuvres that jeopardised the safety of the French frigate and the lives of the sailors on the speedboat”, and the crew of the Winner had thrown parcels containing large quantities of cocaine into the sea. There had therefore been “reasonable grounds”, in the Investigation Division's view, to suspect the Winner of drug trafficking, so that “in using force to stop the Winner and taking appropriate measures to control and restrain the crew, who were confined to their quarters, and to take over and steer the ship”, the commander of the frigate had “strictly observed” the provisions of Article 17.4 of the Vienna Convention (under which he is authorised, when a ship is boarded and searched, “If evidence of involvement in illicit traffic is found, [to] take appropriate action with respect to the vessel, persons and cargo on board”) and the provisions of the Law of 15 July 1994 as amended, regulating the use of coercion measures, including, if necessary, the use of force in the event of refusal by a ship to submit to inspection (Articles 1 to 10), and providing for the implementation of the inspection and coercion measures provided for in international law in the particular case of drug trafficking (Articles 12 to 14).

The Investigation Division went on to dismiss the applicants' argument that Article 13 of the Law of 15 July 1994 as amended provided only for assistance measures of an administrative nature, which excluded any form of coercion in respect of people, as the Article mentioned in general terms that the competent maritime authorities had the power to carry out or have carried out “the inspection and coercion measures provided for in international law” and Article 17.4 c) of the Vienna Convention concerning drug trafficking expressly mentioned taking “appropriate action with respect to the vessel, persons and cargo on board”. Although it accepted that the exact nature of that action was not specified, the Investigation Division considered that the text concerned provided “at least for the competent naval authorities to limit, if necessary, the freedom of the boarded ship's crew to come and go; otherwise the provision would be meaningless and the safety of the men taking over control of the ship would be seriously jeopardised”. In respect of this last point, it considered that “it cannot be ruled out in the course of such operations against international drug traffickers on the high seas that the crew might have weapons hidden away and might seek to regain control of the ship by force”. It concluded that “the fact that the Winner's crew were confined to their quarters (...) under military guard so that the ship could be safely taken over and rerouted fell within the appropriate action provided for in Article 17.4 c) of the Vienna Convention”.

Lastly, the Investigation Division considered that the Law of 15 July 1994 “necessarily required some departure from ordinary criminal procedure to allow for the specific needs of the effort to combat drug trafficking by ships on the high seas, in keeping with the rules of international law, and for the fact that it was impossible in practice, bearing in mind the time needed to sail to the new port of destination, to apply the ordinary rules governing detention and the right to be brought promptly before a judge”. Accordingly, the restrictions placed on the movements of a boarded ship's crew, as authorised in such cases by the United Nations Convention signed in Vienna on 20 December 1988, were not at variance with Article 5 § 3 of the Convention and did not amount to unlawful detention. It also noted that in this particular case, as soon as the Winner had docked, its crew had been handed over to the police, immediately informed of their rights and placed in custody, then brought before the investigating judge.

An appeal on points of law lodged by the applicants (complaining in particular of a violation of Article 5 § 3 of the Convention) was dismissed in a judgment of the Criminal Division of the Court of Cassation of 15 January 2003. According to that court, “in ruling as it did, in so far as Cambodia, the flag State, [had] expressly and without restriction authorised the French authorities to stop the Winner and, in keeping with Article 17 of the Vienna Convention, only appropriate action had been taken against the persons on board, who [had been] lawfully taken into police custody as soon as they landed on French soil, the Investigation Division [had] justified its decision”.

In a judgment of 28 May 2005 the Ille-et-Vilaine Special Assize Court found Mr Georgios Boreas, Mr Symeon Theophanous, Mr Guillermo Sage Martínez and Mr Sergio Cabrera Leon guilty of conspiracy to illegally attempt to import narcotics and sentenced them respectively to twenty years', eighteen years', ten years' and three years' imprisonment; it acquitted the other applicants of the charges against them. The parties have not said what the outcome of a subsequent appeal was.

France is party to the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances signed in Vienna on 20 December 1988, Article 17 of which reads as follows:

“ILLICIT TRAFFIC BY SEA

The Parties shall co-operate to the fullest extent possible to suppress illicit traffic by sea, in conformity with the international law of the sea.

A Party which has reasonable grounds to suspect that a vessel flying its flag or not displaying a flag or marks of registry is engaged in illicit traffic may request the assistance of other Parties in suppressing its use for that purpose. The Parties so requested shall render such assistance within the means available to them.

A Party which has reasonable grounds to suspect that a vessel exercising freedom of navigation in accordance with international law, and flying the flag or displaying marks of registry of another Party is engaged in illicit traffic may so notify the flag State, request confirmation of registry and, if confirmed, request authorization from the flag State to take appropriate measures in regard to that vessel.

In accordance with paragraph 3 or in accordance with treaties in force between them or in accordance with any agreement or arrangement otherwise reached between those Parties, the flag State may authorize the requesting State to, inter alia:

a) Board the vessel;

b) Search the vessel;

c) If evidence of involvement in illicit traffic is found, take appropriate action with respect to the vessel, persons and cargo on board.

Where action is taken pursuant to this article, the Parties concerned shall take due account of the need not to endanger the safety of life at sea, the security of the vessel and the cargo or to prejudice the commercial and legal interests of the flag State or any other interested State.

The flag State may, consistent with its obligations in paragraph 1 of this article, subject its authorization to conditions to be mutually agreed between it and the requesting Party, including conditions relating to responsibility.

For the purposes of paragraphs 3 and 4 of this article, a Party shall respond expeditiously to a request from another Party to determine whether a vessel that is flying its flag is entitled to do so, and to requests for authorization made pursuant to paragraph 3. At the time of becoming a Party to this Convention, each Party shall designate an authority or, when necessary, authorities to receive and respond to such requests. Such designation shall be notified through the Secretary-General to all other Parties within one month of the designation.

A Party which has taken any action in accordance with this article shall promptly inform the flag State concerned of the results of that action.

The Parties shall consider entering into bilateral or regional agreements or arrangements to carry out, or to enhance the effectiveness of, the provisions of this article.

Action pursuant to paragraph 4 of this article shall be carried out only by warships or military aircraft, or other ships or aircraft clearly marked and identifiable as being on government service and authorized to that effect.

Any action taken in accordance with this article shall take due account of the need not to interfere with or affect the rights and obligations and the exercise of jurisdiction of coastal States in accordance with the international law of the sea.”

France has not, however, signed the “Agreement on Illicit Traffic by Sea, implementing article 17 of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances”, signed in Strasbourg on 31 January 1995, which entered into force on 1 May 2000.

Inserted by Law no. 96-359 of 29 April 1996 “on drug trafficking at sea and adapting French legislation to Article 17 of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances signed in Vienna on 20 December 1988”, section 13 of Law no. 94-589 of 15 July 1994 “on conditions governing the exercise by the State of its powers to carry out checks at sea” reads as follows (version applicable at the material time):

“Where there exist reasonable grounds to suspect that one of the vessels referred to in section 12 and sailing outside territorial waters is engaged in illicit drug trafficking, commanders of State vessels and of aircraft responsible for surveillance at sea shall have the power – under the authority of the Maritime Prefect, who shall inform the Public Prosecutors' Office – to carry out, or have carried out the inspection and coercion measures provided for under international law and under this law.”

Section 12 of the law (in the version applicable at the material time) stipulates that section 13 applies, not only to ships flying the French flag but also “to ships flying the flag of a State Party to the Vienna Convention of 20 December 1988 other than France, or lawfully registered in such a State, at the request or with the agreement of the flag State” (in the version amended by Law no. 2005-371 of 22 April 2005, Section 12 refers to “ships flying the flag of a State which has requested intervention by France or agreed to its request for intervention”) and “to ships displaying no flag or having no nationality”. It adds that “the investigation and establishment of drug trafficking offences committed at sea, and prosecution and trial therefor” are to be governed by the following provisions (version applicable at the material time):

“Chapter I. - Measures taken at the request or with the agreement of a State Party to the above-mentioned Vienna Convention of 20 December 1988

Section 14

I. – Where he decides to search the ship, at the request or with the agreement of a State Party to the above-mentioned Convention, the commander may have any narcotic substances found on board seized, together with any objects or documents which appear to be linked to drug trafficking.

They shall be placed under seal in the presence of the captain of the ship or any person found on board the ship.

II. - The commander may order the ship to be rerouted to an appropriate position or port when more thorough inspection is required that cannot be carried out at sea.

The ship may also be rerouted to a point located in international waters if the flag State expressly requests it, with a view to taking control of the ship.

III. – A report on the measures taken in application of Article 17 of the Vienna Convention, and the products, objects or documents placed under seal, shall be handed over to the authorities of the flag State when no further judicial action is taken on French soil.

Chapter II. – Powers of the French courts

Section 15

Persons accused of drug trafficking on the high seas and their accomplices may be prosecuted and tried by the French courts when bilateral or multilateral agreements or special arrangements have been concluded between States Parties to the Vienna Convention.

Such special arrangements shall be transmitted through diplomatic channels to the French authorities, together with any information capable of giving rise to a suspicion that a ship is engaged in drug trafficking.

A copy of these documents shall be forwarded by any means and without delay to the public prosecutor.

Section 16

Police officers acting in accordance with the provisions of the Code of Criminal Procedure, customs officers and, when specially so authorised under conditions laid down by a decree of the Conseil d'Etat, commanders of State vessels, naval officers on board such vessels and commanders of State aircraft responsible for patrolling the seas, shall all be empowered to establish that drug trafficking offences are being committed and bring the offenders to justice in the following manner:

I. – The relevant public prosecutor shall be given prior notification, by any means, of the operations envisaged with a view to investigating and establishing the offences.

The offences shall be placed on record and the record thus made shall be authoritative unless proven otherwise. The report drawn up shall be communicated to the public prosecutor without delay and at the latest within fifteen days following the operations. The interested party shall be given a copy.

II. – Subject to the authorisation of the public prosecutor (except in cases of extreme urgency), searches may be made and narcotic substances seized as well as objects or documents that appear to be linked to an offence under the legislation on narcotic substances, or to serve to commit such an offence. Such authorisation shall be communicated by any means.

The substances, objects or documents seized shall immediately be placed under seal.

Searches may be carried out and items seized on board the ship outside the times laid down in Article 59 of the Code of Criminal Procedure.”

France is also party to the Single Convention on Narcotic Drugs of 30 March 1961, Article 35 of which reads as follows:

“Having due regard to their constitutional, legal and administrative systems, the Parties shall:

a) Make arrangements at the national level for co-ordination of preventive and repressive action against the illicit traffic; to this end they may usefully designate an appropriate agency responsible for such co-ordination;

b) Assist each other in the campaign against the illicit traffic in narcotic drugs;

c) Co-operate closely with each other and with the competent international organizations of which they are members with a view to maintaining a co-ordinated campaign against the illicit traffic;

d) Ensure that international co-operation between the appropriate agencies be conducted in an expeditious manner; and

e) Ensure that where legal papers are transmitted internationally for the purposes of a prosecution, the transmittal be effected in an expeditious manner to the bodies designated by the Parties; this requirement shall be without prejudice to the right of a Party to require that legal papers be sent to it through the diplomatic channel;

f) Furnish, if they deem it appropriate, to the Board and the Commission through the Secretary-General, in addition to information required by article 18, information relating to illicit drug activity within their borders, including information on illicit cultivation, production, manufacture and use of, and on illicit trafficking in, drugs; and

g) Furnish the information referred to in the preceding paragraph as far as possible in such manner, and by such dates as the Board may request; if requested by a Party, the Board may offer its advice to it in furnishing the information and in endeavouring to reduce the illicit drug activity within the borders of that Party.”

Articles 108 and 110 of the United Nations Convention on the Law of the Sea, signed at Montego Bay on 10 December 1982, read as follows:

“Article108: Illicit traffic in narcotic drugs or psychotropic substances

All States shall cooperate in the suppression of illicit traffic in narcotic drugs and psychotropic substances engaged in by ships on the high seas contrary to international conventions.

Any State which has reasonable grounds for believing that a ship flying its flag is engaged in illicit traffic in narcotic drugs or psychotropic substances may request the cooperation of other States to suppress such traffic.”

“Article 110: Right of visit

Except where acts of interference derive from powers conferred by treaty, a warship which encounters on the high seas a foreign ship, other than a ship entitled to complete immunity in accordance with articles 95 and 96, is not justified in boarding it unless there is reasonable ground for suspecting that:

(a) the ship is engaged in piracy;

(b) the ship is engaged in the slave trade;

(c) the ship is engaged in unauthorized broadcasting and the flag State of the warship has jurisdiction under article 109;

(d) the ship is without nationality; or

(e) though flying a foreign flag or refusing to show its flag, the ship is, in reality, of the same nationality as the warship.

In the cases provided for in paragraph 1, the warship may proceed to verify the ship's right to fly its flag. To this end, it may send a boat under the command of an officer to the suspected ship. If suspicion remains after the documents have been checked, it may proceed to a further examination on board the ship, which must be carried out with all possible consideration.

If the suspicions prove to be unfounded, and provided that the ship boarded has not committed any act justifying them, it shall be compensated for any loss or damage that may have been sustained.

These provisions apply mutatis mutandis to military aircraft.

These provisions also apply to any other duly authorized ships or aircraft clearly marked and identifiable as being on government service.”


CASE OF DUDGEON v. THE UNITED KINGDOM (ARTICLE 50)

Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings

The Dudgeon case was referred to the Court by the European Commission of Human Rights ("the Commission") in July 1980. The case originated in an application against the United Kingdom of Great Britain and Northern Ireland lodged with the Commission on 22 May 1976 by a United Kingdom citizen, Mr. Jeffrey Dudgeon.

On 30 January 1981, the Chamber constituted to hear the case relinquished jurisdiction in favour of the plenary Court (Rule 48 of the Rules of Court). By judgment of 22 October 1981, the plenary Court held, inter alia, that the applicant had been the victim of a breach of Article 8 (art. 8) of the Convention by reason of the existence in Northern Ireland of laws which had the effect of making certain homosexual acts committed in private between consenting adult males criminal offences (Series A no. 45, point 1 of the operative provisions and paragraphs 37-63 of the reasons, pp. 27 and 17-25).

The only outstanding matter to be settled in the present case is the question of the application of Article 50 (art. 50). Accordingly, as regards the facts the Court will confine itself here to giving the pertinent details; for further particulars, reference should be made to paragraphs 13 to 33 of the above-mentioned judgment (ibid., pp. 7-16).

At the hearing held on 23 April 1981, counsel for the applicant had stated that, should the Court find a violation of the Convention, his client would be seeking just satisfaction under Article 50 (art. 50) to obtain financial compensation for damage suffered and for legal and other expenses incurred. The Government of the United Kingdom ("the Government"), for their part, had taken no stand on the matter.

In its judgment of 22 October 1981, the Court reserved the whole of the question of the application of Article 50 (art. 50) and referred it back to the Chamber under Rule 50 § 4 of the Rules of Court. On the same day, the Chamber invited the Commission to submit, within the coming two months, written observations thereon, including notification of any friendly settlement at which the Government and the applicant might have arrived (ibid., p. 48).

Following two extensions by the President of the Chamber of the above-mentioned time-limit and in accordance with his orders and directions, the following documents were filed at the registry:

- on 17 May 1982, the observations of the Delegates of the Commission, appended to which were, inter alia, details of the applicant's claim;

- on 6 August 1982, a memorial from the Government;

- on 15 September 1982, the reply of the Delegates to a question raised therein by the Government;

- on 15 October 1982, through the Secretary to the Commission, the observations of the applicant on the above-mentioned memorial of the Government;

- on 15 November 1982, the comments of the Government on the latter observations.

On 8 November 1982 and 11 January 1983, the Secretariat of the Commission transmitted to the Registrar further observations by Mr. Dudgeon, which the latter had sent to the Commission on his own initiative.

These various documents revealed that it had not been possible to arrive at a friendly settlement. The Delegates did not comment on the merits of the applicant's claim, which may be summarised as follows:

- for damage suffered as a result of the police investigation carried out in 1976, financial compensation of £5,000;

- for damage suffered by reason of the very existence of the legislation successfully complained of, financial compensation of £10,000 and a declaration by the Government that if Mr. Dudgeon were to apply for civil service employment he would not be discriminated against either on grounds of homosexuality or for having lodged his petition with the Commission;

- reimbursement of costs itemised at £4,655.

Further particulars of the claim are set out below in the section "As to the law".

Following the Court's judgment of 22 October 1981 and on the initiative of the Government, an Order in Council, entitled the Homosexual Offences (Northern Ireland) Order 1982, was made. Subject to certain exceptions concerning mental patients, members of the armed forces and merchant seamen, the effect of this Order, which came into force on 9 December 1982, is to "decriminalise" in Northern Ireland homosexual acts committed in private between two consenting males aged 21 years and over. The Order brings the relevant law in Northern Ireland into line with that applying in the remainder of the United Kingdom (see the above-mentioned judgment of 22 October 1981, pp. 9-10, §§ 16-18).

Having consulted, through the Registrar, the Agent of the Government and the Delegates of the Commission, the Chamber decided on 1 October 1982 that there was no call to hold hearings.

Mr. J. Cremona, Mr. F. Matscher and Mr. B. Walsh, substitute judges, took the place of Mr. Thór Vilhjálmsson, Mr. G. Lagergren and Mr. L. Liesch, who were prevented from taking part in the further consideration of the case (Rules 22 § 1 and 24 § 1 of the Rules of Court).


No violation of Art. 6-1;No violation of Art. 14+6

Gaukur Jörundsson;Luzius Wildhaber;Nicolas Bratza;Paul Mahoney

On 8 November 1993 the applicant commenced employment as an administrative assistant at the United States Embassy in London, in the Foreign Broadcasting Information Service, which is a subsidiary of the Central Intelligence Agency. She was dismissed from her employment in February 1995. Following her dismissal the applicant issued proceedings against the United States Government in the North London Industrial Tribunal, claiming that her dismissal had been the result of sex discrimination contrary to sections 1(1)(a), 4(1)(d) and 6(2)(b) of the Sex Discrimination Act 1975 (see paragraph 15 below). In particular she alleged that she had been the victim of persistent sexual harassment from her supervisor and that working relationships had broken down in consequence. The United States Government defended the claim and did not, at any stage in these proceedings, claim State immunity. On 13 May 1996 the Tribunal upheld the applicant’s complaint. A compensation figure of GBP 12,000 was agreed between the parties.

In June 1995, whilst her first claim in the Industrial Tribunal was still pending, the applicant applied for and obtained a fixed term 12 month contract as an administrative assistant within the Foreign Building Operations section of the Embassy. The contract was due to expire in June 1996. In June 1996 and August 1996 (after the finding in her favour by the Industrial Tribunal), the applicant applied for at least two of the following posts at the Embassy of the United States: secretary with the Office of Foreign Litigation of the United States Department of Justice, temporary secretary with the above office and temporary secretary with the International Marketing Centre, which is operated by the United States Foreign Commercial Service. On each occasion her application was unsuccessful.

On 15 September 1996 the applicant issued a second application before the Industrial Tribunal. She claimed that the refusal of the Embassy to re-employ her in two of the above posts was a consequence of her previous successful sex discrimination claim, and accordingly constituted victimisation and discrimination within the meaning of sections 4 and 6 of the Sex Discrimination Act 1975.

By a letter of 10 January 1997, solicitors acting for the United States notified the Regional Secretary to the Industrial Tribunal that the United States Government intended to claim immunity from the jurisdiction of the Tribunal under sections 1 and 16(1)(a) of the State Immunity Act 1978 (“the 1978 Act”: see paragraph 16 below). The letter enclosed an affidavit sworn by the First Secretary at the Embassy, deposing to the fact that each of the posts for which the applicant had applied were part of the administrative and technical staff of the Embassy, and accordingly fell within the ambit of the immunity imposed by section 16(1)(a) of the 1978 Act.

On 6 February 1997 the applicant received the advice of counsel, to the effect that the United States Government were entitled to claim immunity under the 1978 Act, and that once immunity was properly asserted there was no means by which a court or tribunal in the United Kingdom could accept jurisdiction to entertain the application. Accordingly, the applicant was advised that she had no remedy in domestic law.

The Sex Discrimination Act 1975 (“the 1975 Act”) creates a statutory cause of action which arises when an employer treats an employee or a potential employee less favourably by reason of her sex (“sex discrimination”), or by reason of the fact that she has taken or intends to take proceedings against any person under the 1975 Act (“victimisation”).

Section 1(1) of the Act defines “sex discrimination” as follows:

“A person discriminates against a woman in any circumstances relevant for the purposes of any provision of this Act if: (a) on the ground of her sex he treats her less favourably than he treats or would treat a man ...”

Section 4(1) of the Act defines “victimisation” as follows:

“A person (‘the discriminator’) discriminates against another person (‘the person victimised’) in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has: (a) brought proceedings against the discriminator or any other person under this Act, or ... (d) alleged that the discriminator or any other person has committed an act which ... would amount to a contravention of this Act or give rise to a claim under the Equal Pay Act 1970 ...”

Section 6 of this Act defines the circumstances in which it is unlawful to discriminate against employees and applicants, on the grounds of sex discrimination or victimisation, as follows:

“(1) It is unlawful for a person, in relation to employment by him at an establishment in Great Britain, to discriminate against a woman: (a) in the arrangements he makes for the purpose of determining who should be offered that employment, or ... (c) by refusing or deliberately omitting to offer her that employment.”

(2) It is unlawful for a person, in the case of a woman employed by him at an establishment in Great Britain, to discriminate against her ... (b) by dismissing her, or subjecting her to any other detriment.”

The United Kingdom’s State Immunity Act 1978 provides, inter alia, as follows:

“1(1) A State is immune from the jurisdiction of the courts of the United Kingdom except as provided in the following provisions of this Part of this Act. … 4(1) A State is not immune as respects proceedings relating to a contract of employment between the State and an individual where the contract was made in the United Kingdom or the work is to be wholly or partly performed there. 4(2) Subject to sub-sections (3) and (4) below, this section does not apply if- (a) at the time when the proceedings are brought the individual is a national of the State concerned; or (b) at the time when the contract was made the individual was neither a national of the United Kingdom nor habitually resident there; or (c) the parties to the contract have otherwise agreed in writing. 4(3) Where the work is for an office, agency or establishment maintained by the State in the United Kingdom for commercial purposes, sub-section (2)(a) and (b) above do not exclude the application of this section unless the individual was, at the time when the contract was made, habitually resident in that State. … 16(1) This Part of this Act does not affect any immunity or privilege conferred by the Diplomatic Privileges Act 1964 or the Consular Relations Act 1968; and:- (a) Section 4 above does not apply to proceedings concerning the employment of the member of a mission within the meaning of the Convention scheduled to the said Act of 1964 or of the member of a consular post within the meaning of the Convention scheduled to said Act of 1968. ...”

Article 1 of the Vienna Convention on Diplomatic Relations which is scheduled to the Diplomatic Privileges Act 1964 provides the following definitions:

“(b) the ‘members of the mission’ are the head of the mission and the members of staff of the mission; (c) the ‘members of staff of the mission’ are the members of diplomatic staff or the administrative and technical staff, and of the service staff of the mission. ... (f) the ‘members of the administrative and technical staff’ are the members of the staff of the mission employed in the administrative and technical service of the mission.”

The 1972 European Convention on State Immunity (“the Basle Convention”), entered into force on 11 June 1976 after its ratification by three States. It has now been ratified by eight States (Austria, Belgium, Cyprus, Germany, Luxembourg, the Netherlands, Switzerland and the United Kingdom) and signed by one other State (Portugal). It entered into force in respect of the United Kingdom on 4 October 1979, and provides, inter alia:

Article 5

“1. A Contracting State cannot claim immunity from the jurisdiction of a Court of another Contracting State if the proceedings relate to a contract of employment between the State and an individual where the work has to be performed in the territory of the State of the forum. 2. Paragraph 1 shall not apply where: (a) the individual is a national of the employing State at the time when the proceedings were brought; (b) at the time when the contract was entered into the individual was neither a national of the State of the forum nor habitually a resident in that State; or (c) the parties to the contract have otherwise agreed in writing, unless, in accordance with the law of the State of the forum, the Courts of that State have exclusive jurisdiction by reason of the subject-matter. 3. Where the work is done for an office, agency or other establishment referred to in Article 7, paragraphs 2(a) and (b) of the present article apply only if, at the time the contract was entered into, the individual had his habitual residence in the Contracting State which employs him.”

Article 32

“Nothing in the present Convention shall affect privileges and immunities relating to the exercise of the functions of diplomatic missions and consular posts and of persons connected with them.”

The International Law Commission’s Draft Articles on Jurisdictional Immunities of States and Their Property, submitted to the General Assembly of the United Nations ((1991), II(2) YBILC 13), provides at Article 11, paragraph 1, that:

“a State cannot invoke immunity ... in a proceeding which relates to a contract of employment between the State and an individual for work performed in the territory of [the host] State.”

However, this provision is specifically disapplied where “the subject of the proceedings is the recruitment, renewal of employment or reinstatement of the individual” and where “the employee has been recruited to perform functions closely related to the exercise of governmental authority”.

Although there is no explicit reference to employment at diplomatic or consular missions in these provisions, the commentary indicates that the latter exception was intended to apply in such a context and that all employees at such missions would be precluded from bringing suit on the basis of State immunity.

The Committee on State Immunity of the International Law Association adopted in 1982 its Draft Convention on State Immunity, Article IIIC of which dealt with contracts of employment and was similar in its terms to Article 5 of the Basle Convention. An amendment was added to Article IIIC at the ILA’s 1994 conference, providing for immunity to be granted where “the employee was appointed under the public (administrative) law of the foreign state such as, inter alia, members of the mission, diplomatic, consular or military staff”. In the explanatory commentary on the amendment the Committee stated that it wished “to make clear that the employment relationship of any and all diplomatic and consular staff and other members of the mission should be immune from the jurisdiction of the courts of the forum state”.


Violation of Art. 8;Non-pecuniary damage - financial award

Mr. X and his daughter Y were born in 1929 and on 13 December 1961 respectively. The daughter, who is mentally handicapped, had been living since 1970 in a privately-run home for mentally handicapped children.

During the night of 14 to 15 December 1977, Miss Y was woken up by a certain Mr. B, the son-in-law of the directress; he lived with his wife on the premises of the institution although he was not employed there. Mr. B forced the girl to follow him to his room, to undress and to have sexual intercourse with him.

This incident, which occurred on the day after Miss Y’s sixteenth birthday, had traumatic consequences for her, causing her major mental disturbance.

On 16 December 1977, Mr. X went to the local police station to file a complaint and to ask for criminal proceedings to be instituted.

The police officer said that since Mr. X considered his daughter unable to sign the complaint because of her mental condition, he could do so himself. The statement lodged by Mr. X read as follows: "In my capacity as father I denounce the offences committed by Mr. B on the person of my daughter. I am doing this because she cannot do so herself, since, although sixteen years of age, she is mentally and intellectually still a child."

The police officer drew up a report and it was signed by Mr. X (Articles 163 and 164 of the Code of Criminal Procedure). The officer subsequently informed the public prosecutor’s office that in the light of the father’s statement and of his own observations concerning the girl’s mental condition, she did not seem to him capable of filing a complaint herself. According to the headmaster of the school she was attending and another teacher there, she was unable to express her wishes concerning the institution of proceedings.

On 29 May 1978, the public prosecutor’s office provisionally decided not to open proceedings against Mr. B, provided that he did not commit a similar offence within the next two years. The official in charge of the case so informed Mr. X at a meeting on 27 September 1978.

On 4 December 1978, Mr. X appealed against the decision of the public prosecutor’s office to the Arnhem Court of Appeal, under Article 12 of the Code of Criminal Procedure; he requested the court to direct that criminal proceedings be instituted.

In a supplementary memorial of 10 January 1979, he pointed out that subject to an exhaustive list of exceptions none of which applied in the instant case, a legal representative was entitled to act on behalf of the complainant.

The Court of Appeal dismissed the appeal on 12 July 1979. In fact, it considered it doubtful whether a charge of rape (Article 242 of the Criminal Code; see paragraph 14 below) could be proved. As for Article 248 ter (see paragraph 16 below), it would have been applicable in the instant case, but only if the victim herself had taken action. In the Court of Appeal’s view, the father’s complaint (Article 64 para. 1 of the Criminal Code; see paragraph 16 below) could not be regarded as a substitute for the complaint which the girl, being over the age of sixteen, should have lodged herself, although the police had regarded her as incapable of doing so; since in the instant case no one was legally empowered to file a complaint, there was on this point a gap in the law, but it could not be filled by means of a broad interpretation to the detriment of Mr. B.

By virtue of Article 445 of the Code of Criminal Procedure, there was no possibility of appealing on a point of law to the Supreme Court (Hoge Raad) against this decision.

As regards sexual offences, the Netherlands Criminal Code makes a distinction between rape (Article 242) and indecent assault (Article 246), recourse to physical violence also being a constituent element of the latter offence.

Other more specific provisions afford in this area protection to certain categories of persons whose age, position of dependence or physical incapacity renders it difficult or impossible for them to determine or impose their wishes.

Articles 244 and 245, respectively, make it a criminal offence to have sexual intercourse with a girl under the age of twelve or with a girl between the ages of twelve and sixteen, and under Article 247 it is a criminal offence to commit an indecent assault on boys or girls under the age of sixteen.

Articles 243 and 247 concern, respectively, sexual intercourse with, and indecent assault on, a woman known to the offender to be unconscious or helpless. According to the Supreme Court, however, the word "helpless" refers only to physical incapacity.

Article 249 relates to indecent acts committed with a minor who is in a position of dependence vis-à-vis the perpetrator.

Finally, Article 239 concerns indecency, either in public or while another person is present against his will.

Save for Article 245, none of these provisions makes the institution of criminal proceedings conditional on the filing of a complaint by the victim.

The same does not apply to Article 248 ter, whereby a sentence of not more than four years’ imprisonment may be imposed on any person who, "through gifts or promises ..., through abuse of a dominant position resulting from factual circumstances, or through deceit, deliberately causes a minor of blameless conduct to commit indecent acts with him or to suffer such acts from him": in a case of this kind, the offender can be prosecuted only on complaint by the actual victim.

Under Article 64 para. 1, however, the legal representative may lodge the complaint on behalf of the victim if the latter is under the age of sixteen or is placed under guardianship (curateele); this latter institution exists only for persons who have reached the age of majority, namely twenty-one (Article 378, Book I, of the Civil Code).

At the hearings, counsel for the Government informed the Court that the Ministry of Justice had prepared a Bill modifying the provisions of the Criminal Code that related to sexual offences. Under the Bill, it would be an offence to make sexual advances to a mentally handicapped person.


The applicant, a Polish citizen residing in Stoczek Łukowski, is an engineer.

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

On 24 November 1990 the President of the National Bank of Poland issued a decision under the provisions of the 1989 Banking Act authorising the establishment of the Lublin First Commercial Bank (Pierwszy Komercyjny Bank S.A. w Lublinie), a public company with foreign capital.

In January 1991 the company was registered in the public companies register at the Lublin District Court. The share capital of the company was 56 billion Polish zlotys (PLZ - “old”, equivalent to 5,600,000 new Polish zlotys as from 1 January 1995). 97,5 % of the shares were owned by one D.B.

On 8 April 1992 the applicant bought shares in the Lublin First Commercial Bank from D.B. The parties fixed the price for the shares at PLZ 40,000,000,000, to be paid in three instalments. The applicant thus acquired 40 % of the bank’s equity capital.

On 17 June 1992 the applicant and D.B. agreed to rescind this contract. On 22 June 1992 the bank, having regard to D.B.’s failure to pay it the sums he owed, took over a number of his shares in order to cover his unpaid obligations. Later on, the applicant deposited with the bank 307 shares which he had purchased from D.B. The bank sought the consent of the President of the National Bank of Poland to a re-transfer of ownership from the applicant to D.B.

By a letter of 17 July 1992 the President refused. She stated in her letter that the bank was an institution of public trust, using the assets of private persons. Under the provisions of the 1989 Banking Act, and in particular its Article 100, the activities of banks were supervised by the National Bank of Poland in order to protect savings and investments entrusted to them. D.B., who had meanwhile been arrested and extradited to the United States, where he had been convicted of financial fraud, did not give any guarantee that the interests of the bank’s customers would be properly protected if he remained a majority shareholder in the bank. It was also noted that a conflict of interest arose, as, in addition to being the bank’s majority shareholder, D.B. had been the sole or joint owner of a number of companies which had defaulted on loans from the bank, thus undermining its financial standing.

By a letter of 7 August 1992 the President of the National Bank drew the attention of the bank’s board to the necessity of preparing a recovery and restructuring programme in order to improve the bank’s financial standing.

The bank’s losses for 1992 totalled PLZ 1,063,043,000,000, its capital resources being PLZ 888,336,000,000.

On 4 February 1993 T. company, owned by the applicant, took out a loan of PLZ 4,000,000,000 from the bank, repayable within a year.

By a decision no. 2/93 of 6 February 1993 the President of the National Bank of Poland appointed a Board of Receivers (Zarząd Komisaryczny) which was to replace the existing governing and supervisory bodies of the company for a period of six months. In so doing, she had regard to the continuing deterioration of the bank’s financial situation and to the danger of its becoming insolvent. The measure was intended to improve the bank’s financial standing and to preserve the assets deposited with it. Regard was also had to the fact that the bank’s board had failed to submit the recovery programme requested by the National Bank. It was further pointed out that the composition of the bank’s board had been changed many times, which made it difficult for any coherent management policy to be adopted, and that the new board, elected in December 1992, had also failed to devise a recovery programme and to show that it would be able to prepare and implement it. True, it had undertaken to do so within three months, but in the bank’s dramatic situation that was far too long and late. It was further noted that the bank could only be saved by external financing, but no institutions prepared to fund a rescue operation had been found.

In the external auditors’ report for 1992, subsequently prepared at the request of the Board of Receivers, it was stated, inter alia, that before 10 August 1992 the bank’s governing bodies and its principal shareholder, D.B., had acted in an unprofessional manner which brought about considerable losses. The losses had been caused, in particular, by transactions between the bank and companies owned by the principal shareholder, D.B. A number of ill-advised loans had been made, in particular to companies and private individuals linked to D.B. It was necessary to re-assess the bank’s strategy, in particular by finding an external investor willing to improve the bank’s financial standing by increasing its share capital. However, the chances of finding an investor willing to invest approximately USD 60,000,000 were practically non-existent. Another option was to seek institutional support from the National Bank of Poland, the World Bank or a different source. Any new investor would have to take control of the bank in order to manage it until its financial standing improved. Accordingly, the existing shareholders would lose their dominant position.

According to an extract from the bank’s books, on 31 May 1993 the applicant’s company, T., owed the bank PLZ 1,524,757,500. On 1 June 1993 the bank instituted enforcement proceedings against that company.

On 3 August 1993 the mandate of the Board of Receivers was prolonged until 7 November 1993. It was subsequently renewed again.

On 23 October 1993 the Board of Receivers adopted a resolution by virtue of which the bank’s memorandum of association was amended. The nominal value of its share capital was first reduced from PLZ 50,000,000,000 to PLZ 1,098,000,000 by cancelling 31,350 Class A shares worth PLZ 1,000,000 each. The value of 27,450 remaining Class A shares A was reduced from PLZ 1,000,000 to PLZ 40,000. The sum of PLZ 57,702,000,000 thus generated was to be used in its entirety to cover the bank’s losses. Next the bank’s share capital was increased by PLZ 250,000,000,000 through the issue of 6,250,000 new Class B non-transferable shares of PLZ 40,000 each, with extra voting rights. Class B shares were to be paid up entirely by funds provided by the National Bank of Poland in order to improve the standing of the bank, which was on the verge of bankruptcy; they were consequently allotted to the National Bank of Poland, to be owned by it. The existing shareholders, in order to protect the bank’s interests, were prevented from acquiring new shares.

As a result of these operations, the applicant’s shareholding decreased from approximately 45 % to 0,4 %.

On the same day the Board of Receivers adopted another resolution by deleting the provision in the bank’s memorandum of association which prohibited the cancellation of shares, and introduced a provision to the effect that the shares could be cancelled by reducing the share capital.

On 25 November 1993 the applicant lodged a civil action with the Lublin Regional Court seeking an order setting aside the resolution of 23 October 1993. He submitted that the resolution had arbitrarily decreased the value of his shares and deprived him of the right to acquire new shares; consequently, he had sustained a heavy financial loss. He also argued that the resolution contravened applicable laws, in particular banking laws and the Commercial Code.

On 10 December 1993 the Lublin Regional Court ordered that the pleadings be returned to the applicant on the ground that he had not complied with the relevant procedural requirements under the Code of Civil Procedure, as he had failed to indicate the value of the claim. It considered that that claim was clearly of a pecuniary character, its value being equivalent to the loss he had sustained as a result of the resolution of 23 October 1993.

On 23 December 1993 the applicant appealed against that order, submitting that pursuant to the regulation on court fees, only a fixed fee was to be paid to commence an action for an order quashing corporate resolutions. Thus, it was unnecessary for him to indicate the amount in dispute.

On 27 January 1994 the Lublin Regional Court, acting as an appellate court, dismissed the applicant’s appeal, considering that the lower court had been right to find that his claim was of a pecuniary character, since his aim was to obtain compensation for his alleged loss resulting from the resolution.

On 16 February 1994 the applicant again lodged a civil action with the Lublin Regional Court, seeking an order quashing the resolution of 23 October 1993. He submitted that the amount in dispute was PLZ 30,690. On 25 October 1994 the Lublin Regional Court requested the applicant to pay court fees of PLZ 1,000,000,000.

On 1 November 1994 the applicant requested an exemption in respect of the court fees. He submitted that his property had been seized by a bailiff in the context of enforcement proceedings which had been instituted against him by the Lublin First Commercial Bank on 31 May 1993.

On 28 December 1994 the Lublin Regional Court refused to grant the applicant an exemption, considering that he had failed to submit to the court detailed information regarding his financial situation. The applicant lodged an interlocutory appeal against that decision.

On 11 January 1995 the Lublin Court of Appeal dismissed the appeal. It examined the documents submitted in support of the appeal and considered that, as the applicant had significant assets, including two companies and real property, he did not qualify for an exemption.

On 30 December 1993 the Lublin District Court (Commercial Division) ordered that entries be made in the Companies Register, reflecting the results of the Board of Receivers’ resolution of 23 October 1993.

On 20 January 1994 the applicant lodged an appeal against that decision.

On 10 June 1994 the Lublin Regional Court referred a question on points of law to the Supreme Court (Sąd Najwyższy). The Supreme Court was requested to rule on the correct interpretation of the scope of the Board of Receivers’ power to adopt resolutions on matters reserved to the company’s shareholders’ general meeting, in particular as regards reducing the share capital.

On 22 July 1994 the Supreme Court, by resolution no. III CZP 92/94, stated that the Board of Receivers appointed under the provisions of the Banking Act was empowered to adopt resolutions on all matters reserved by statute or by the company’s memorandum of association to the company’s shareholders in general meeting. It held that, with regard to banks, the provisions of the Banking Act, which was a lex specialis, took precedence over the provisions of the Commercial Code governing public companies which contained certain limitations on the powers of the Board of Receivers.

On 23 September 1994 the Lublin Regional Court dismissed the applicant’s appeal.

On 7 October 1994 the Lublin Regional Court dismissed an action brought by the Lublin Forestry Enterprise LAS (Lubelskie Przedsiębiorstwo Produkcji Leśnej LAS) against the Lublin First Commercial Bank. The plaintiff company, which had been a shareholder of the bank, sought an order quashing the resolution of 23 October 1993. It argued that the resolution should be quashed in pursuance of Article 414 of the Commercial Code which allowed shareholders to seek an order setting aside resolutions of the shareholders’ general meeting if taken deliberately to their detriment.

On 9 November 1994 the applicant requested the Lublin Regional Court’s permission to join these proceedings as a co-plaintiff. On the same date he lodged an appeal against the judgment of 7 October 1994. The applicant contended in his appeal that the impugned judgment was in breach of substantive law in that the court had wrongly held that the provisions of the Banking Act took precedence over the provisions of the Commercial Code concerning shareholders’ power to challenge before the courts certain resolutions of a shareholders’ general meeting. The applicant further submitted that the court had failed to draw reasonable conclusions from the evidence, in particular in that it had not concluded that the impugned resolution had been taken deliberately to the shareholders’ detriment.

On 23 June 1995 the Lublin Court of Appeal dismissed the applicant’s appeal. It found that the National Bank of Poland had appointed the Board of Receivers in view of the heavy losses which the First Commercial Bank had sustained in 1992, mostly as a result of bad debts. It was not in dispute that the bank had sustained such losses. The purpose of the resolution of 23 October 1993 had been to improve the bank’s financial standing in the interest of its customers and in order to prevent it from becoming insolvent. The court further referred to the resolution of the Supreme Court of 22 July 1994. It considered that, in the light of that resolution, the judgmentLublin First Commercial Bank.

On 7 August 1995 the judgment was served on the applicant. He requested the Minister of Justice to lodge an extraordinary appeal on his behalf. By a letter of 20 December 1995 the Minister of Justice declined to do so, considering that the impugned judgment was in conformity with the law.

Pursuant to Article 104 of the Banking Act 1989 as in force at the material time, if a bank suffers or is in danger of suffering losses or of becoming insolvent, its board must promptly inform the President of the National Bank of Poland and take appropriate recovery measures. A recovery programme must be submitted to the President of the National Bank for approval within thirty days.

If the board fails to do so, or if such programme does not appear to guarantee an improvement in the bank’s standing, the President of the National Bank may place the bank under compulsory receivership.

The board of receivers has powers to make decisions in all matters concerning the bank. Its primary task is to prepare a recovery programme for approval by the National Bank of Poland and to ensure its implementation.

On 28 May 1996 the Constitutional Tribunal gave a decision under which Article 105 of 1989 Banking Act was to be construed as meaning that the board of receivers had the power of taking any decisions that the suspended statutory organs of the bank were empowered to take (W 9/95 OTK 1996/3/24).

Under Article 418 of the Civil Code, as worded at the material time, if damage was caused by a public servant as a result of him/her giving a decision or accomplishing another official act, the State Treasury was to be held liable only if that decision or act amounted to a breach punishable under criminal law or under any disciplinary regulations, and if the fault of the public servant had been confirmed by a judgment of a criminal court or of a competent disciplinary authority, or was otherwise established by a superior authority.

Article 76 of the Code of Civil Procedure provides that any person who has a legal interest in the outcome of a case may join proceedings as a co-plaintiff or co-defendant at any stage prior to the end of the hearings before the court of second instance.