Violation of Art. 2;No violation of Art. 2;Violation of Art. 6-1;Non-pecuniary damage - award

Javier Borrego Borrego;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova

The applicant was born in 1961 and lives in Sofia.

In May 1994 the applicant's mother, Mrs Stoyanova, sixty-three years old and suffering from Altzheimer's disease, was admitted to the Sofia nursing home for elderly persons. The home was located on a busy boulevard in Kniazhevo, a neighbourhood of Sofia. Mrs Stoyanova was placed in the hospital unit, which was staffed with several medical doctors and nurses. According to a medical opinion on Mrs Stoyanova's health at that time, her memory and other mental capacities progressively deteriorated. She needed constant supervision and the nursing home staff had been instructed not to leave her unattended. In the following months, the applicant visited his mother regularly and on occasion accompanied her for medical visits outside the nursing home.

During his visit on 2 December 1995, the applicant noticed spots on his mother's skin and reported it to the nurse on duty.

The applicant visited again on 4 December 1995, at about 6.30 p.m., but was informed that his mother was missing. Earlier that day his mother had been sent to consult a dermatologist outside the home, accompanied by Mrs V., a medical orderly. According to the explanation given to the applicant, upon their return, at around 11.30 a.m., the medical orderly had left Mrs Stoyanova alone in the yard and had not found her there several minutes later. The nursing home staff had looked for Mrs Stoyanova in the area but in vain.

The staff alerted the police approximately two hours after the incident. On the same day, and again on 11 December 1995, the police heard several witnesses to the events and recorded their statements. Some of them explained that they had searched the area immediately upon learning of Mrs Stoyanova's disappearance.

On 8 December 1995, Mrs Stoyanova was recorded as a person sought by the police in the region of Sofia and on 22 December 1995 her data were entered in the national list of missing persons. On 11 December 1995 the Sofia police issued a press release containing information about Mrs Stoyanova's physical appearance and an appeal to the public to report any relevant information. It appears that the description of Mrs Stoyanova's appearance contained errors. On 13 December 1995 the area in the proximity of the nursing home was searched unsuccessfully using a police dog. The police also checked the identity of patients admitted to psychiatric clinics during the relevant period. They also verified information according to which, in January 1996, a woman resembling the applicant's mother had spent a night in a monastery. In February 1996 an announcement was broadcast on national television.

In the days following his mother's disappearance the applicant himself did what he could to find her. He contacted all those who had last been in contact with her, published calls for witnesses in several newspapers and posted announcements carrying his mother's photograph.

The applicant's mother has not been found to date. In 1998 a District Court issued a decision declaring Mrs Stoyanova missing and appointed the applicant as her representative.

On 5 July 1996 the applicant filed a complaint with the Sofia District Prosecutor's Office alleging that the administrative and medical staff of the nursing home had been responsible for his mother's disappearance.

Nothing was done in the case until December 1997, despite the applicant's numerous complaints to all levels of the prosecuting authorities.

In December 1997 the District Prosecutor's Office opened a preliminary investigation into the matter.

The applicant participated actively in the ensuing proceedings. He made specific requests for the collection of evidence in respect of the events of 4 December 1995 and the alleged negligence on the part of the nursing home staff. In other submissions, often voluminous, he exposed at length his suspicion that his mother might have been abducted by a criminal gang trading in human organs.

On 19 March 1998, after having heard doctor G., the head of the medical staff at the nursing home, the investigator recommended that the investigation be discontinued. On 10 April 1998 the prosecutor followed this recommendation. The investigator and the prosecutor noted that it had not been uncommon in the practice of the nursing home for residents suffering from Alzheimer's decease to be sent for outside examinations by public transport, accompanied by a medical orderly. Also, it had been the normal practice to leave residents in the yard for several minutes, the time necessary to report to the doctor on duty, and then to accompany them to their rooms. The yard had been enclosed by a fence and staff had usually been present in the area. There had been a gatekeeper whose duty had been to check the identity of those entering. Having noted those facts, the investigator and the prosecutor stated that no criminal offence had been committed.

The applicant was not informed of the above decision. He became aware of it on 14 December 1998, when he visited the District Prosecutor's Office to inquire about the examination of his complaint.

On 8 January 1999 the applicant appealed, insisting that other witnesses be examined, such as the medical orderly who had accompanied his mother, the medical doctor who had sent his mother for an examination and the gatekeeper.

On 22 January 1999 the Sofia City Prosecutor's Office quashed the lower prosecutor's decision and referred the case back for renewed investigation. In June and August 1999 the file was transmitted to an investigator. The investigator heard the medical orderly and the gatekeeper.

On 12 April 2000 the prosecutor terminated the proceedings. He noted that Ms V., the medical orderly, had left the applicant's mother in the yard for two or three minutes as she had been asked to see a senior medical staff member. At that moment the applicant's mother had left and could not be found. The gatekeeper had stated that she had not seen Mrs Stoyanova. The prosecutor further noted that, in accordance with the relevant job descriptions, it was the medical orderlies' duty to accompany residents and that the gatekeeper's duties did not include responsibility for the residents' safety. On that basis the prosecutor concluded that “there [was] no indication that a staff member had exposed Mrs Stoyanova [to a danger] ...; and, as regards the [possible perpetrator's] mens rea, no wilful conduct could be proven.”

The applicant appealed.

On an unspecified date the prosecutor's decision of 12 April 2000 was quashed and the case remitted for renewed investigation. In the ensuing investigation it was established that the gatekeeper had not been at the gate when the applicant's mother had been left alone there on 4 December 1995, as the she had left to have tea.

On 18 June 2001 the District Prosecutor's Office terminated the proceedings. The decision stated, inter alia:

“Ms V. had left [the applicant's mother] alone in the yard, in dereliction of her duty to accompany and assist the seriously ill [residents]. However, her act did not constitute a criminal offence under Article 137 of the Criminal Code. That provision makes punishable the failure to assist a person in a helpless state, in circumstances of a real danger for that person's life, if the perpetrator is aware of the danger but fails to act. Ms V. stated that she had not thought that leaving [the applicant's mother alone] in the yard might result in a danger for her life, as the yard was closed by a fence and a gatekeeper was usually present. The gatekeeper had committed a serious dereliction of her duties as she had left the gate to have a tea. However, the gatekeeper is not criminally liable as she had not understood that [the applicant's mother] was in danger. Ms V. and the gatekeeper have undoubtedly committed disciplinary offences, which should have led to disciplinary sanctions but their behaviour is not criminally punishable.”

The applicant was not informed of the prosecutor's decision. Having learned about it, on 29 September 2001 he appealed to the Sofia District Court.

On 21 November 2001 the Sofia District Court quashed the prosecutor's decision and referred the case for renewed investigation, considering that there were inconsistencies in the prosecutor's reasoning and that not all relevant evidence had been collected.

After having heard additional witnesses, on 15 August 2003 the Sofia District Prosecutor's Office terminated the investigation. The prosecutor noted the following facts that had not been mentioned in earlier decisions: i) it had not been uncommon for elderly residents of the nursing home to scale the fence around the house; ii) there was a second entrance to the yard, used for service cars, which had usually been kept closed by means of a metal bar placed on the inner side of the portal; and iii) order in the nursing home and the duties of its staff were not clearly regulated.

The prosecutor stated that in view of the absence of clear rules on the duties of staff in the nursing home it was not possible to draw conclusions as to the criminal liability of staff members. Also, the facts did not disclose a criminal offence under Article 137 of the Criminal Code.

The prosecutor also stated that in any event the relevant statutory limitation period for the prosecution of the alleged perpetrators had expired.

On an appeal by the applicant, on 20 January 2004 the Sofia District Court upheld the prosecutor's decision of 15 August 2003 as the relevant statutory limitation period for the prosecution of the alleged perpetrators had expired on 4 June 2003.

In July 1996, the applicant complained to the prosecution authorities alleging that the police had not taken the necessary steps to search for his mother following her disappearance. The prosecuting authorities examined the matter and, by decisions of 1997 and 1999, refused to open criminal proceedings, considering that the police had acted diligently.

On 10 July 1996 the applicant brought before the Sofia City Court a civil action for non-pecuniary damages resulting from his mother's disappearance. He claimed damages from the Ministry of Labour and Social Care and the Sofia municipality (the institutions responsible for the nursing home) on the grounds that the employees of the nursing home had been negligent. He also sought damages from the Ministry of the Interior on the grounds that insufficient efforts had been made to find his mother. The applicant indicated the State Responsibility for Damage Act as the legal grounds for his action.

Throughout the proceedings before the Sofia City Court the applicant made voluminous written submissions and numerous requests for the collection of evidence.

At the first hearing, on 24 February 1997, the court could not proceed with the examination of the case as one of the defendants had not been summoned. The court ordered the applicant to indicate the full addresses of the Ministry of Labour and Social Care and of the Sofia municipality and stated that failure to comply could lead to discontinuation of the proceedings.

Hearings were held on 2 June 1997 and 19 January 1998. The Sofia City Court admitted several documents in evidence and refused to admit other documents. The applicant's request for several witnesses to be examined was refused as it had been unclear and related to facts whose establishment required documentary proof.

On 13 April 1998 the representative of the Sofia Municipality, which managed the nursing home, stated that the case did not fall to be examined under the State Responsibility for Damage Act. The representative of the Ministry of the Interior, one of the defendants, stated that the applicant's allegations in reality concerned not the Ministry as a whole but one of its regional units, the Sofia Directorate of Internal Affairs. The court decided to adjourn the hearing and instructed the applicant to submit proof of the locus standi of the Ministry of the Interior.

On an unspecified date the applicant requested that the Sofia Directorate of Internal Affairs be added to the action as a further defendant. The request was granted at the next hearing, on 16 October 1998, and the case was adjourned. The court instructed the applicant to submit another copy of the evidence already admitted to the file, to be transmitted to the new defendant.

At the hearing on 26 March 1999 the representative of the Sofia Directorate of Internal Affairs stated that the case did not fall to be examined under the State Responsibility for Damage Act as it did not concern the administrative powers of the police. The applicant sought to involve the nursing home as defendant. The court instructed the applicant to prove that the nursing home had a legal personality separate from that of the Sofia Municipality and adjourned the hearing. The court eventually found that the nursing home did not have separate legal personality.

The hearing held on 15 October 1999 was adjourned as the court issued a disclosure order against the Sofia police in respect of specific documents. The court rejected the applicant's request to summon witnesses, including the medical doctor on duty on the relevant day. The applicant had stated that the witnesses would testify about the daily regime in the nursing home, the identity of staff members responsible for accompanying the applicant's mother, her state of health on the relevant day and the exact sequence of events following her consultation with a dermatologist. The court held that such facts could only be established on the basis of documentary evidence.

On 4 February 2000 the hearing could not proceed owing to a defective summons.

The hearing listed for 5 May 2000 was adjourned owing to the prosecutor's absence.

On 6 October 2000 the court accepted some of the applicant's requests for the examination of witnesses and adjourned the hearing.

The next hearing was held on 2 February 2001. It was adjourned as the nursing home had not complied with a disclosure order in respect of specific documents. One of the summoned witnesses appeared but was not invited to testify.

The hearing listed for 4 May 2001 could not proceed as one of the defendants and a witness had not been summoned. The court fixed the next hearing for 12 October 2001.

On 12 October 2001 the court heard two witnesses, who were employees of the nursing home.

The employee responsible for the relevant unit stated that the staff had been aware of the applicant's mother's illness and her complete lack of orientation. She had been on a “closed regime”. All staff had been aware that she had to be accompanied.

Mrs V., the medical orderly who had accompanied the applicant's mother, testified that she had left her for a minute at the gate, next to the gatekeeper's booth. The gate had not been locked. However, the gatekeeper had been there at that time. Mrs V. further stated that she had told the gatekeeper to look after the applicant's mother and that the gatekeeper's statement that she had not seen the applicant's mother had been untrue.

The next hearing was on 15 March 2002. The court heard two witnesses and adjourned the examination of the case. One of the witnesses, the gatekeeper at the nursing home, did not appear. Eventually, the court decided to examine the case on the basis of the available material. The last hearing was held on 21 June 2002.

On 31 July 2002 the Sofia City Court delivered its judgment. It found that the applicant had no standing to bring an action under the State Responsibility for Damage Act since his mother had not been declared dead and, therefore, the applicant could not claim that he was her heir.

The court also stated that it was unclear whether the State Responsibility for Damage Act applied as it only concerned damage resulting from unlawful administrative decisions or unlawful acts of the administration.

On 16 August 2002 the applicant appealed. He stated, inter alia, that it was for the courts to decide on the legal characterisation of his claim. Therefore, if the court considered that the claim fell to be examined under general tort law, it should examine it under general tort law. The applicant also reiterated that he was personally affected as he had suffered non-pecuniary damage as a result of his mother's disappearance.

By decisions of 21 and 30 January 2003, the Appellate Court, criticising the Sofia City Court's failure to collect relevant evidence, ordered the summonsing of witnesses and the production of other evidence in the appellate proceedings.

On 8 July 2003 the Appellate Court ordered the examination of a witness, the gatekeeper.

On 13 October 2003 the court heard the former gatekeeper, who had fallen ill, in her home, in the presence of the parties' representatives and a prosecutor. The former gatekeeper stated that on the relevant date she had not seen the applicant's mother.

On 15 January 2004 the Appellate Court delivered its judgment. It found that the State Responsibility for Damage Act only concerned damages resulting from administrative decisions or acts in the exercise of administrative functions. The applicant's claim did not concern such decisions or acts and fell to be examined under the general provisions of tort law. For that reason, the Appellate Court annulled the Sofia City Court's judgment and remanded the case for renewed examination by the Sofia City Court.

On 13 February 2004 the applicant filed a cassation appeal. On 25 May 2005 the Supreme Court of Cassation rejected the appeal. It found that the Sofia City Court had been wrong to examine the case under the State Responsibility for Damage Act.

On an unspecified date the case was transmitted to the Sofia City Court for fresh examination under general tort law.

On 7 July 2005 the Sofia City Court instructed the applicant to clarify his claims.

On 1 September 2005 the court found the clarifications made insufficient and gave him additional instructions.

On 1 February 2006 the Sofia City Court held a hearing. It issued disclosure orders against the nursing home and the Sofia Directorate of Internal Affairs and allowed the collection of other evidence. The hearing was adjourned until 14 June 2006. The proceedings are pending.

At the relevant time, the activities of nursing homes for the elderly and other social care homes were governed by regulations issued by the Ministry of Public Health (State Gazette no. 91 of 1965, amended by State Gazette no. 30 of 1987), in force until 1999, when new regulations replaced them.

In accordance with the regulations, nursing homes were funded and managed by the local municipal councils and were required to follow the standards established and instructions given by the Ministry of Public Health. It appears, however, that in 1994 nursing homes were placed under the management of the Ministry of Labour and Social Care. That was not reflected in the regulations.

The regulations set out the duties of the main staff categories – the director, medical doctors, nurses and administrative staff. On that basis, each nursing home adopted its own internal rules. The nursing home where the applicant's mother lived also had internal rules regulating in detail the organisation and distribution of tasks and duties among staff. In addition, the specific duties attached to each position were set out in job descriptions. For example, according to the job description for a gatekeeper, one of the main duties was control over the entry and exit of persons and vehicles. The nursing home also maintained a presence/absence table and daily instructions book.

Article 137 of the Criminal Code makes it a punishable offence to place a person in a situation endangering his life and, being aware of the situation, to fail to render assistance, despite the fact that the person concerned is unable to take care of himself owing to young or old age, illness, or any other state of helplessness.

There is no reported case-law under that provision.

The State Responsibility for Damage Act provides, in its section 1, that the State shall be liable for damage occasioned by State bodies or State officials in the exercise of their administrative functions. For damage caused in other circumstances, the State and State bodies are liable under general tort law.

According to the established practice in civil proceedings, the courts examine and determine the legal characterisation of claims submitted to them, without regard to the legal characterisation proposed by the plaintiff. The plaintiff must identify the disputed issue by clarifying the facts and the claim made but is under no duty to specify its characterisation in law. Even if the plaintiff indicates a legal characterisation of the claim, the courts are not bound thereby. They must make their own independent assessment (see, among many other authorities, the following judgments: 1208-98-V (Supreme Court of Cassation), 38-97-VII (Supreme Administrative Court) and 75-88- ОСГК (Supreme Court)).

According to section 10, unlike civil proceedings under general tort law, proceedings under the Act are conducted in the presence of a prosecutor and court fees are only payable following the entry into force of the final judgment.

In 2005, the Supreme Court of Cassation issued an interpretative decision on certain aspects of the implementation of the Act, noting the existence of disputes and divergent practice. One of the issues dealt with was the identity of the State administrative bodies having locus standi to answer claims under the Act. The Supreme Court of Cassation clarified that the action must be brought against the State body employing the relevant agent or, where that State body did not have separate legal personality, against the superior State organ meeting that condition.

By virtue of sections 8-19 of the Persons and Family Act, the courts may declare missing a person whose whereabouts have been unknown for more than one year. If the person is still missing after five years, the courts may declare the person presumed dead.


Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award

On 15 March 1986 the applicant sued for damages the Warsaw-Mokotów District Office (Urząd Dzielnicowy), the Warsaw Architecture Office (Urząd Stołecznej Architektury) and three of his neighbours, A.H., H.H. and T.H., in the Warsaw Regional Court (Sąd Wojewódzki). The applicant sought 1,000,000 old Polish zlotys (PLZ) for the loss that he had allegedly sustained on account of various impediments to the construction of his house.

On 4 January 1988 the applicant withdrew his claims against the first two defendants. Since then, the proceedings have been directed only against his neighbours A.H., H.H. and T.H.

Between 1988 and March 1992 the Regional Court listed 8 hearings. It also ordered that 3 reports from construction experts be obtained so as to assess the value of the financial loss sustained by the applicant.

The last of those reports was submitted to the court in December 1992.

At the hearing held on 29 September 1993 the court heard evidence from Z.S., an expert.

Later, both parties contested Z.S.' s report. The applicant nevertheless asked the court to give a ruling on his claim, stressing that the length of the proceedings had to date exceeded 8 years.

On 18 November 1994 the court ordered that fresh evidence be obtained from Z.S.

In December 1994 the presiding judge stepped down and the case was referred to another judge.

On 27 February 1995 the applicant complained to the President of the Warsaw Court of Appeal (Sąd Apelacyjny) about – in his words – “an exceptional delay in the proceedings”. In a letter of 26 April 1995 the President admitted that the procrastination in the proceedings had indeed been caused by the fact that the Regional Court had failed to keep the proceedings moving along procedural lines. He apologised to the applicant in the name of the administration of justice.

On 16 May 1995 the applicant complained to the President of the Supreme Court (Sąd Najwyższy) about the inactivity of the Warsaw Regional Court. On 13 June 1995 the President referred the complaint to the Minister of Justice, an authority responsible for monitoring the conduct of court proceedings. He observed, however, that despite the case having already been brought under the Minister's supervision, since 29 September 1993 no hearing had taken place before the Regional Court.

Subsequently, the applicant made three further similar complaints to the President of the Warsaw Court of Appeal.

In a letter of 4 August 1995 the President again apologised to the applicant and admitted that the monitoring of the conduct of the proceedings had not been very successful. He also informed the applicant that the President of the Warsaw Regional Court had been instructed to take steps in order to accelerate the proceedings.

On 4 October 1995 the court held a hearing and served copies of Z.S.'s fresh report on the parties. Since the inflation rate and purchasing power of the Polish currency had meanwhile changed substantially, the court ordered the applicant to state the exact amount of damages claimed in the light of current circumstances.

On 11 October and 17 October 1995 the applicant filed two pleadings with the court and stated that the current total value of his claim was 355,585.59 new Polish zlotys (PLN).

On 6 March 1996 the court held a hearing. It ordered the applicant to pay court fees of PLN 14,342 for having lodged, in the court's view, a new and higher claim, and on pain of the statement of claim being returned to him.

On 31 May 1996, on an appeal by the applicant, the Warsaw Court of Appeal quashed the contested order as being premature. It found that the lower court had misconstrued the applicant's pleading and ordered it to obtain from the applicant a clear statement of the amount currently claimed.

Meanwhile, on 5 May 1997, the applicant had complained to the court about the lack of progress in the litigation. He stressed that as of that date the length of the proceedings was about 12 years, but his claim was still far from being determined. He repeated that he had not increased, and was not going to increase, the value of the claim.

At the hearing which was held on 26 May 1997 the court ordered Z.S. to prepare yet another report and to determine the current value of various items included in his report of 28 February 1995. That order was a consequence of the fact that, since the beginning of 1995, the inflation rate and the purchasing power of the Polish currency had again changed considerably.

On 27 August 1997 the court held the next hearing.

On 9 September 1997, the applicant lodged a complaint with the Supreme Court, submitting that the length of the proceedings in his case had exceeded all reasonable limits. On 22 September 1997 the Case-law Department of the Supreme Court informed him that he should address his complaints to the Minister of Justice, who was responsible for monitoring the conduct of the proceedings.

On 3 October 1997 the Warsaw Regional Court ordered that evidence from yet another construction expert be obtained.

On 20 December 1997 K.S., an expert, submitted his report to the court.

On 20 April, 24 June and 14 September 1998 the Regional Court held hearings.

On 15 October 1998 the applicant submitted a pleading to the court, pointing out that K.S. had based his findings on inaccurate indexes of the value of the construction works and had, therefore, come to wrong and unfair conclusions on the assessment of his loss.

On 2 November 1998 he submitted his comments on the value of certain construction works, as assessed by K.S. He further asked the court to proceed with his case and to give “any ruling terminating the proceedings that have so far lasted 13 years”.

On 26 November 1998 the applicant again asked the court to give a ruling.

The next hearing took place on 8 February 1999. The court heard evidence from K.S. and adjourned the proceedings to enable the expert to prepare a supplementary report.

At the hearing held on 26 April 1999, the court ordered K.S. to prepare yet another supplementary report.

Subsequent hearings were held on 25 August and 22 November 1999. The court heard evidence from the expert and, on 22 November 1999, once again ordered the applicant to specify his claims.

On 10 January 2000 the applicant informed the court in writing that he had already specified his claims on three occasions.

On 15 May 2000 the court held a hearing, but then adjourned the proceedings sine die.

The next hearings were listed for 10 April and 5 July 2001 and, subsequently, for 14 February and 14 May 2002.

In the light of the material before the Court, it appears that the proceedings are still pending in the court of first instance.


David Thór Björgvinsson;Ineta Ziemele;Ledi Bianku;Päivi Hirvelä;Paul Mahoney;Vincent A. De Gaetano;Zdravka Kalaydjieva

The applicant, Ms Teodora Dimitrova Zaharieva, is a Bulgarian national, who was born in 1965 and lives in Sofia. She was represented before the Court by Mr M. Ekimdzhiev and Ms K. Boncheva, lawyers practising in Plovdiv.

The Bulgarian Government (“the Government”) were represented by their Agent, Ms M. Dimova, of the Ministry of Justice.

In 1998 the applicant was diagnosed with breast cancer and underwent surgical removal of her right breast. In the following years she also underwent chemotherapy.

In November 2002 the applicant developed a tumour in her left breast, which was also removed, and underwent another course of chemotherapy.

This medical treatment was provided to the applicant free of charge by the public health system.

In November 2002 the applicant was prescribed a course of hormonal therapy which required the administration, once every twentyeight days, of a medicine whose active component was goserelin.

At the relevant time goserelin was on the list of medicines provided by the Ministry of Health free of charge. Between November 2002 and February 2004 the applicant received it regularly free of charge.

In March 2004 the applicant was informed that there was a problem with the supply of goserelin. Having received medical advice that interrupting the intake of the product for longer than a month could be dangerous for her health, the applicant had no choice but to purchase it from a pharmacy. She did so in March and April 2004. The price of goserelin for each dose was 480 Bulgarian levs (BGN).

Being unable to keep on paying for goserelin each month, in July 2004 the applicant, on the advice of her doctor, underwent an alternative treatment in the form of radiocastration, which resulted in the definitive cessation of her ovarian function.

After that the applicant was prescribed another medicine whose active substance was letrozole, to be taken daily for twentyfour months. Letrozole was also on the list of medicines provided free of charge by the Ministry of Health. However, the applicant did not receive the medicine free of charge and had to pay for it. Being unable to afford to pay for a full course of treatment with letrozole – the cost of one package containing forty pills was BGN 360 –, the applicant took it irregularly and in smaller doses than prescribed.

In March 2005 metastases in the applicant’s liver were discovered, and she underwent a third course of chemotherapy.

In May 2005 the applicant was not provided free of charge with docetaxel, another expensive medicine, although it was necessary for the chemotherapy and also featured on the list of medicines provided by the Ministry of Health free of charge.

The applicant repeatedly protested, in letters and complaints addressed to the Ministry of Health and other institutions, about the recurring problems with the supply of medicines for persons suffering from cancer.

It appears that in 2006 the applicant continued to experience irregular supplies of free medicines.

On 2 February 2005 the applicant brought a claim for damages against the Ministry of Health. She sought BGN 1,280 that she had paid for the medicines that should have been provided to her free of charge and BGN 50,000 in respect of the non-pecuniary damage resulting from the worsening of her health due to the Ministry’s failure to provide those medicines. The statement of claim did not clarify the legal provision on which the claim was based.

Between February and April 2005 the Sofia City Court returned the statement of claim to the applicant four times, pointing to various deficiencies in it. In particular, the applicant was requested to describe the specific actions and omissions which had given rise to the alleged damage and to provide more particulars about the damage that she had suffered.

The first hearing was held on 23 June 2005. The court dealt with a number of evidential requests by the parties, allowed an increase of the applicant’s claim in respect of nonpecuniary damage, and gave leave to the applicant to specify her claim in respect of pecuniary damage. It also ordered a medical expert report requested by counsel for the applicant, and adjourned the case until 15 December 2005.

On 28 June 2005 the applicant specified that she was claiming BGN 1,500 in respect of pecuniary damage and BGN 398,500 in respect of nonpecuniary damage. She also asked the court to bring forward the date of its next hearing.

On 15 July 2005 counsel for the Ministry requested the court to put additional questions to the expert.

On 19 September 2005 the court admitted the increase of the applicant’s claims, but said that in view of its case load and the amount of evidence that needed to be gathered the date of the next hearing could not be brought forward.

The expert filed her report on 9 December 2005.

At the hearing on 15 December 2005 the court admitted the report and heard the expert. It went on to admit a number of documents presented by the parties and to hear one witness called by the applicant. The case was adjourned until 9 February 2006.

On 18 January 2006 the applicant made written submissions clarifying that her claim was based on section 1 of the State Responsibility for Damage Act 1988 (“the 1988 Act” – see paragraph 40 below).

At the hearing on 9 February 2006 the parties made submissions on the evidence. The court also dealt with the applicant’s submissions of 18 January 2006 and instructed her to provide further clarifications.

Having received the applicant’s clarifications, on 23 April 2006 the court, sitting in private, noted that the applicant had based her claim on section 1 of the 1988 Act and that therefore its examination had to start afresh because the procedure applicable to claims under that Act, unlike the one applicable to claims under the general law of tort, required the participation of a public prosecutor.

At the next hearing, held on 25 May 2006, the examination of the case started afresh. The court took note of the applicant’s earlier submissions concerning the quantum of her claims, instructed the applicant to provide duly certified copies of certain documents that she wanted to adduce, and ordered a medical expert report. It also heard a witness called by the applicant, and adjourned the case until 20 October 2006 to allow further evidence to be gathered.

The expert report was ready on 19 May 2006.

The last hearing took place on 20 October 2006.

The Sofia City Court gave its judgment on 6 November 2006. It awarded the applicant BGN 1,500 in respect of pecuniary damage (the cost of the medicines that she had had to buy herself) and BGN 80,000 in respect of nonpecuniary damage. Applying section 10(2) of the 1988 Act, as worded at that time (see paragraph 44 below), the court ordered the applicant to pay BGN 12,740 (four per cent of BGN 318,500 – the rejected part of her claim in respect of nonpecuniary damage) in court fees.

Both parties appealed. The Ministry requested two additional expert reports.

On 14 March 2007 the Sofia Court of Appeal admitted certain documents enclosed by the parties with their appeals. It also partly acceded to the Ministry’s request and ordered an additional medical expert report. The report was filed on 24 April 2007.

The first hearing before the Sofia Court of Appeal took place on 7 May 2007. The court admitted the medical expert report and heard the experts. Counsel for the Ministry contested parts of the report and requested a fresh report. The court did not accede to that request, but ordered the experts to recheck some of their conclusions in the light of the objections raised by counsel for the Ministry.

The experts filed their amended report on 13 June 2007. The court held a hearing on 2 July 2007, at which it admitted the amended report and reheard the experts. It also dealt with some other evidential requests and heard the parties’ closing arguments.

The Sofia Court of Appeal gave its judgment on 1 August 2007. It increased the award of nonpecuniary damages to BGN 100,000, plus interest at the legal rate (see paragraph 42 below) running from 2 February 2005, and upheld the remainder of the lower court’s judgment. It noted that as a result of the increase of the quantum of the award, the applicant owed only BGN 11,940 (four per cent of BGN 298,500 – the rejected part of her claim in respect of nonpecuniary damage) in court fees in respect of the firstinstance proceedings. However, the court did not order the applicant to pay any fees in respect of the appellate proceedings.

The Sofia City Court and the Sofia Court of Appeal both concluded that the Ministry of Health was liable for the cost of the medicines that the applicant had been forced to buy on the open market and for the nonpecuniary damage suffered by the applicant as a result of the breakdown in the supply of those medicines. The courts found that the Ministry had, in breach of its duties under the applicable statutes and regulations, failed to organise certain public procurement tenders in a timely manner and had, moreover, bought insufficient quantities of certain medicinal products, which had not covered the needs of all cancer patients in Bulgaria. Also, the system of distribution of those products had not been organised efficiently. The courts found that those omissions had been in breach of section 1 of the 1988 Act (see paragraph 40 below), and had resulted in interruptions in the applicant’s treatment requiring recourse to radiocastration, which had had the effect of irreversibly terminating her ovarian function and had, moreover, exposed her to harmful radiation possibly causing tumours. The courts also found that as a result of the Ministry’s omissions the applicant’s chances of overcoming her illness had decreased, that she had suffered lasting feelings of pain and distress, and that she had been negatively affected for the rest of her life. The only difference between their conclusions was that in the view of the Sofia Court of Appeal the extent of the nonpecuniary damage suffered by the applicant was greater.

Both parties appealed on points of law. The Supreme Court of Cassation heard the appeals on 14 February 2008.

In a final judgment of 20 May 2008 (реш. № 211 от 20 май 2008 г. по гр. д. № 6087/2007 г., ВКС, V г. о.), the Supreme Court of Cassation fully upheld the Sofia Court of Appeal’s judgment. Relying on section 10(2) of the 1988 Act, as worded at that time (see paragraph 44 below), it ordered the applicant to pay BGN 11,940 (four percent of BGN 298,500) in court fees in respect of the cassation proceedings. It did not award any costs to the applicant. The court fully agreed with the Sofia Court of Appeal’s assessment of the failure of the responsible Ministry of Health officials to organise in time the procurement of the medicinal products required for treating the applicant. It also shared the court of appeal’s assessment of the extent of the damage suffered by the applicant. It noted that the court of appeal had omitted to order the applicant to pay fees in respect of the appellate proceedings, but went on to say that this was not an error that could be rectified in cassation proceedings.

On 10 and 11 June 2008 the applicant asked the Supreme Court of Cassation to vary its ruling in relation to court fees in the cassation proceedings and to award her costs in respect of those proceedings. In an additional judgment of 12 December 2008 (реш. № 1471 от 12 декември 2008 г. по гр. д. № 6087/2007 г., ВКС, V г. о.), the court, noting that the newly added section 9a(1) of the 1988 Act (see paragraph 45 below) had already taken effect when the applicant had made her request, decided to reduce the fee that the applicant had been ordered to pay in respect of the cassation proceedings from BGN 11,940 to BGN 5. The court turned down the applicant’s request for the award of costs, noting that she had not been legally represented in the cassation proceedings and had not proved that she had incurred any costs.

In August 2009 the applicant gave a press interview in which she said, inter alia, that her health had improved.

Section 1 of the Act originally called the State Responsibility for Damage Caused to Citizens Act 1988, renamed on 12 July 2006 the State and Municipalities Responsibility for Damage Act 1988 (“the 1988 Act”), provides that the State is liable for damage suffered by individuals (and since 1 January 2006 also legal persons) as a result of unlawful decisions, actions or omissions by civil servants, committed in the course of or in connection with the performance of their duties.

Section 8(1) of the Act provides that those seeking redress for damage occasioned in circumstances falling within the scope of the Act have no claim under the general law of tort. The courts have said that the Act is a lex specialis and excludes the application of the general regime (реш. № 1370 от 16 декември 1992 г. по гр. д. № 1181/1992 г., ВС, ІV г. о.; реш. от 29 юли 2002 г. по гр. д. № 169/2002 г., СГС, ГК, ІVб о.). The Supreme Court of Cassation has said (реш. № 738 от 21 ноември 2006 г. по т. д. № 348/06 г., ВКС, I т. о.) that liability under section 1 of the Act is a special case of vicarious liability under section 49 of the Obligations and Contracts Act 1951, which provides that a person who has entrusted another with carrying out a job is liable for the damage caused by that other person in the course of or in connection with the performance of the job. The Bulgarian courts have on occasion examined damages claims against the authorities under section 49 (see the domestic case cited in First Sofia Commodities EOOD and Paragh v. Bulgaria (dec.), no. 14397/04, § 17, 25 January 2011).

The legal rate of interest is set by the Council of Ministers (section 86(2) of the Obligations and Contracts Act 1951). In a decree of April 1994 (Постановление № 72 от 8 април 1994 г. за определяне на законната лихва по просрочени задължения в левове и във валута) the Council of Ministers decided that the legal rate of interest for overdue debts in Bulgarian levs would be the base interest rate fixed by the Bulgarian National Bank plus ten percentage points. The same position was maintained, with certain technical modifications, in a new decree that came into force on 1 July 2012 and superseded the 1994 one (Постановление № 100 от 29 май 2012 г. за определяне размера на законната лихва по просрочени задължения в левове и във валута).

The general rule in civil proceedings in Bulgaria is that the court fee is payable by the claimant upfront, upon submission of the claim (Article 55 of the Code of Civil Procedure 1952, superseded on 1 March 2008 by Article 73 § 3 of the Code of Civil Procedure 2007, and sections 14 of the State Fees Act 1951). The fee in respect of money claims is four per cent of the amount claimed (point 1 of Tariff No. 1 to the State Fees Act, superseded on 1 March 2008 by section 1 of the Tariff of fees collected by the courts under the Code of Civil Procedure). If the claim succeeds fully or partly, the defendant is ordered to reimburse the claimant’s costs, including court fees, in direct proportion to the successful part of the claim.

Under section 10(2) of the 1988 Act, as originally enacted, in proceedings under the Act, no court fees or costs were payable by the claimant upfront, upon submission of the claim. However, if the claim was eventually wholly or partly dismissed, the court was to order the claimant to pay “the court fees and costs due”. The courts construed that provision as meaning that the claimant should pay fees calculated pro rata the dismissed part of the claim. As a result, where a court held that a claim for damages against the State was wellfounded but excessive as to quantum, it ordered the defendant State authority to pay damages to the claimant and at the same time ordered the claimant to pay court fees to the State budget. Where the claimant indicated too high an amount in the statement of claim, the fee could exceed the sum awarded in damages, the overall financial award being in favour of the State despite the finding that the claimant had suffered damage that called for compensation under the Act (реш. № 1095 от 25 юли 2000 г. по гр. д. № 139/2000 г., ВКС, реш. № 805 от 1 август 2005 г. по гр. д. № 56/2004 г., ВКС). There was no provision for judicial discretion and considerations of equity played no role in fixing the fees’ amount; those fees were fixed by reference to the sums indicated in the statement of claim, even if in the course of the proceedings the claimant withdrew part of the claim (тълк. реш. № 3 от 22 април 2004 г. по тълк. гр. д. № 3/2004 г., ВКС, ОСГК, точка 12).

Following this Court’s judgment in the case of Stankov v. Bulgaria (no. 68490/01, 12 July 2007), which found that the setup outlined above had, on the facts of the case, resulted in a breach of Article 6 § 1 of the Convention (see a summary of the Court’s findings in paragraph 90 below), the Bulgarian Government laid before Parliament a bill for the amendment of the 1988 Act. Parliament enacted the bill on 17 April 2008 and the amending Act came into force on 30 May 2008. Section 10(2) was changed and now deals solely with costs. Court fees are presently governed by a newly added section 9a(1), which provides that the fee due in respect of cases under the Act is flat and is to be fixed in a tariff adopted by the Government. Under the Tariff of fees collected by the courts under the Code of Civil Procedure, as currently in force, the fee is BGN 10 in respect of firstinstance proceedings, BGN 5 in respect of appellate proceedings, and BGN 5 in respect of cassation proceedings. Unlike the previous arrangement, the fee is payable upfront (опр. № 12420 от 4 октомври 2011 г. по адм. д. № 12302/2011 г., ВАС, III о.).

Paragraph 9 of the transitional and concluding provisions of the amending Act provides that the new rule on court fees applies to proceedings which have not been concluded at the time when the new section 9a(1) came into force, and that the fee is charged at the close of the proceedings in each instance.

In its caselaw under that paragraph, the Supreme Court of Cassation in some cases held that the new rule on court fees applied not only in respect of fees charged by the cassation court after the rule had come into effect, but also in respect of fees charged by the lower courts before that, as long as the proceedings as a whole were pending at the time when the rule had come into effect (реш. № 974 от 7 ноември 2008 г. по гр. д. № 2980/2007 г., ВКС, I г. о.; опр. № 201 от 28 декември 2009 г. по гр. д. № 3270/2008 г., ВКС, I г. о.; реш. № 54 от 22 февруари 2010 г. по гр. д. № 5217/2007 г., ВКС, I г. о.). In one case the court went as far as to set aside a writ of execution issued in respect of a court fee charged before the new rule had come into force (опр. № 28 от 10 януари 2012 г. по ч. гр. д. № 700/2011 г., ВКС, IV г. о.).

However, in other cases the Supreme Court of Cassation held that, since it referred to the close of the proceedings “in each instance”, the new rule could not serve as a basis for reducing the fees charged by the lower courts before it had come into effect (реш. № 158 от 15 април 2009 г. по гр. д. № 6217/2007 г., ВКС, I г. о., реш. № 1410 от 24 април 2009 г. по гр. д. № 4946/2007 г., ВКС, I г. о.). In some cases the court held that the rule did not apply to the fees charged by the lower courts before it had come into effect because it did not have retrospective effect (опр. № 34 от 6 март 2009 г. по гр. д. № 4149/2007 г., ВКС, ІІІ г. о., опр. № 92 от 26 ноември 2008 г. по гр. д. № 4603/2008 г., ВКС, IV г. о.).

The text of the provision governing the “complaint about delays” – Article 217a of the Code of Civil Procedure 1952 – has, along with the provisions of the Code of Civil Procedure 2007 that superseded it in March 2008, been set out in paragraphs 43 and 4952 of the Court’s judgment in the case of Finger v. Bulgaria (no. 37346/05, 10 May 2011).

Under Article 257 of the Code of Administrative Procedure 2006, which came into force on 12 July 2006, a person may bring proceedings to enjoin an administrative authority to carry out an action that it has the duty to carry out under a legal provision. If the court allows the claim, it enjoins the authority to carry out the action and fixes a timelimit.

In late 2007 a cancer patient who had, due to a breakdown of supplies, not been provided with iodine131 for postoperative radiotherapy free of charge, as required under the applicable regulations, brought proceedings under Article 257 to enjoin the Minister of Health to make the product available to the hospital that was treating her.

On 28 December 2007 the Sofia City Administrative Court dismissed the claim. On an appeal by the patient, in a decision of 19 May 2008 (опр. № 5756 от 19 май 2008 г. по адм. д. № 2425/2008, ВАС, ІІІ о.) a threemember panel of the Supreme Administrative Court quashed the lower court’s decision, holding that the claim fell within its competence and that it should not have been examined by the lower court.

On 18 May 2009 a threemember panel of the Supreme Administrative Court dismissed the claim (реш. № 6428 от 18 май 2009 г. по адм. д. № 12746/2008 г., ВАС, VІ о.). On an appeal by the patient, in a judgment of 8 February 2010 (реш. № 1609 от 8 февруари 2010 г. по адм. д. № 9282/2009 г., ВАС, петчленен състав) a fivemember panel of the Supreme Administrative Court quashed the threemember panel’s judgment and remitted the case.

In a judgment of 6 July 2010 (реш. № 9411 от 6 юли 2010 г. по адм. д. № 2062/2010 г., ВАС, VІ о.) the threemember panel to which the case had been remitted allowed the claim and enjoined the Minister to complete within one month the relevant procurement procedures. Having reviewed in considerable detail the applicable constitutional and statutory provisions and regulations, and having examined the Minister’s actions in relation to the procurement of the relevant anticancer products, it found that the patient was entitled to receive iodine131 for her medical treatment and that the Minister was under a legal duty – which he had failed to discharge – to provide it to the hospitals which were treating her. It also noted that, in as much as the claimant was seeking redress in respect of the damage that she had already suffered as a result of the Minister’s omission, she could seek reparation by way of a claim under section 1 of the 1988 Act (see paragraph 40 above).

On an appeal by the Minister, in a final judgment of 8 January 2011 (реш. № 859 от 8 януари 2011 г. по адм. д. № 12090/2010 г., ВАС, петчленен състав) a fivemember panel of the Supreme Administrative Court upheld that judgment, fully agreeing with its reasoning.

Parallel to those proceedings, the patient also brought a claim for damages under section 1 of the 1988 Act (see paragraph 40 above), and in a judgment of 12 April 2010 (реш. № 885 от 12 април 2010 г. по адм. д. № 4149/2007 г., АССГ, ІІ о., 26 състав), the Sofia Administrative Court awarded her BGN 100,000 in nonpecuniary damages. On an appeal by the Minister of Health, on 11 January 2011 the Supreme Administrative Court upheld that judgment (реш. № 348 от 11 януари 2011 г. по адм. д. № 8399/2010 г., ВАС, ІІІ о.).


Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

David Thór Björgvinsson;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva

The applicant was born in 1964 and lives in Olsztyn.

At the material time the applicant was editor-in-chief of the local weekly newspaper “Iławski Tydzień”.

On 17 October 2005 the newspaper published an article coauthored by the applicant, entitled “Municipality in danger; authorities fail to see problem”. It described in detail the situation concerning the sewage system in the Iława municipality. The thrust of the article was that the sanitary situation in the municipality was a matter of concern and posed significant public health risks; extensive investments were necessary to improve it; there was a serious shortage of available funds; the municipal authorities were dealing with the problems in a slow and incompetent manner; it was more important for them to save money than to prevent serious health risks and to avert a danger to the population; the quality of water was unsatisfactory; and the mayor, despite the fact that he had been in office for two terms, had failed to deal with the problems properly.

In a letter to the newspaper of the same date the mayor of Iława complained about the article. The first paragraph of that letter was couched in ironic terms. The mayor expressed doubts about the applicant’s intentions and suggested that the applicant had been acting in his own personal interest. He maintained that the general tone of the article was inappropriate. He also voiced doubts as to whether the newspaper had any readers at all and whether it was therefore worth his while to react to the article.

He further requested, referring to section 31 § 1 read together with section 32 of the Press Act 1984, that the applicant publish a rectification (see paragraph 22 below). He stated that the development of the sewage network was a priority for the municipal authorities and listed a number of projects undertaken by the municipality during the preceding five years. Further, three projects planned for the years 2007-2013 were listed. The mayor stated that the quality of the water was monitored by the appropriate services and referred to several projects for modernising and overhauling the existing sewage and sanitary systems.

The applicant did not reply to this letter and did not publish it.

On an unspecified later date the municipality of Iława brought a private bill of indictment against the applicant before the Elbląg District Court for the offence of failure to publish a rectification or reply as prescribed by section 46 § 1 of the Press Act (see paragraph 24 below).

In his written pleadings of 4 December 2005 the applicant argued that the mayor’s letter could not reasonably be regarded as a request for rectification within the meaning of section 31 of the Press Act, because its content lacked the essential characteristics of a “rectification”. It was not related to the facts and it was not couched in objective terms, as stipulated by that provision. In fact, its first part, in particular, was very critical of the applicant and contained innuendos about his character, motives and about the newspaper and its journalists. This alone made it impossible to regard the letter as a request for rectification. Furthermore, the style of the letter lacked the objectivity which could be expected of a rectification. It could therefore not be reasonably seen as such. It resembled rather a “reply”, within the meaning of the same provision of the Press Act, expressing the value judgments and views of its author vis-à-vis the impugned article. Even assuming that the letter could be seen as a rectification, it did not comply with the relevant requirements laid down by section 33 of the Press Act as it was more than twice the length of the contested article.

The applicant further submitted that the letter could not be seen as a rectification request because it breached his personal rights and the rights of other journalists working for the “Tydzień Iławski”, by calling into doubt their professionalism and personal integrity. The applicant referred to section 33 of the Press Act, which obliged an editor-in-chief to refuse the publication of a rectification or a reply if its form or content were incompatible with the principles of co-existence with others (“zasady współżycia społecznego”).

On 13 December 2006 the Elbląg District Court found the applicant guilty of an offence punishable by section 46 § 1 of the Press Act in conjunction with its section 31 § 1. The court sentenced the applicant to four months’ restriction of liberty in the form of twenty hours’ community service per month and suspended the sentence for a period of two years. It further deprived him of the right to exercise the profession of journalist for a period of two years and ordered that the judgment be made public by being displayed at the Iława Municipal Office.

The court noted that the facts of the case, for the most part, were not disputed by the parties. It found that the applicant had not replied to the mayor’s letter and had not published that letter or excerpts thereof, either as a rectification or reply. It noted that he was clearly obliged to do so under the provisions of the Press Act. He was aware of his obligation as he had previously published rectifications in the newspaper. No objective grounds existed which could be said to have legitimately prevented the applicant from complying with that obligation and, in any event, he had not invoked any such grounds. It was the applicant’s own decision to refuse to publish the rectification requested. Similarly, he had failed to reply to the mayor, explaining to him the reasons for his refusal to publish. His failure corresponded to the offence specified in section 46 of the Press Act read together with section 31 of that Act.

The judgment further read:

“The above assessment of the [applicant’s conduct] is additionally supported by the fact that in the impugned article he had discussed a question of significant importance for the municipality of Iława, namely the condition of its sewage system, by saying that the mayor had failed to take effective steps in order to have the sewage system installed. Assuming that the accused took into consideration the significance of his article, he should have, as a diligent journalist and editor-in-chief, either published the rectification demanded by the municipality, which directly concerned the questions raised in the article and outlined the steps which the municipality had already taken, or informed the municipality of the grounds for his refusal to publish a rectification.”

The court further held that the applicant’s failure to publish the mayor’s letter had been to the serious detriment of the Iława municipality as by making it impossible for a fair and public debate to develop it had undermined the confidence which a democratically elected municipal executive authority should enjoy.

The applicant appealed, essentially reiterating his arguments as submitted to the first-instance court.

On 29 March 2007 the Elbląg Regional Court upheld the contested judgment.

Article 54 of the Constitution provides:

“1. Freedom to express opinions, and to acquire and disseminate information shall be ensured to everyone.

Preventive censorship of means of social communication and licensing of the press shall be prohibited.”

Article 31 of the Constitution reads:

“1. Freedom of the person shall receive legal protection.

Everyone shall respect the freedoms and rights of others. No one shall be compelled to do that which is not required by law.

Any limitation upon the exercise of constitutional freedoms and rights may be imposed only by statute, and only when necessary in a democratic state for the protection of its security or public order, or to protect the natural environment, health or public morals, or the freedoms and rights of other persons. Such limitations shall not violate the essence of freedoms and rights.”

Article 190 of the Constitution, regarding the effects of judgments of the Constitutional Court, provides, in so far as relevant:

“1. Judgments of the Constitutional Court shall be universally binding and final.

Judgments of the Constitutional Court, ... shall be published without delay.

A judgment of the Constitutional Court shall take effect from the day of its publication; however, the Constitutional Court may specify another date for the end of the binding force of a normative act. Such a time-limit may not exceed eighteen months in relation to a statute or twelve months in relation to any other normative act. ...

A judgment of the Constitutional Court on non-conformity with the Constitution, an international agreement or statute, of a normative act on the basis of which a final and enforceable judicial decision or a final administrative decision ... is given, shall be a basis for reopening the proceedings or for quashing the decision ... in a manner and on principles specified in provisions applicable to the given proceedings.”

The relevant provisions concerning the correction of information in the press and other media are contained in the Press Act (Prawo prasowe) of 26 January 1984.

Section 31 provides, in so far as relevant, as follows:

“At the request of a natural or legal person or other organisational entity, the editorin-chief of the relevant daily or magazine is under an obligation to publish, free of charge:

a factually based (rzeczowe i odnoszące się do faktów) rectification of untrue or inaccurate statements,

a factually based (rzeczową) reply to any statement which might infringe someone’s personal rights”

Section 32 provides, in so far as relevant, as follows:

“...Without the consent of the claimant, it is forbidden to shorten or make any other amendments to the correction or reply which would weaken its significance or alter the intentions of the author. The correction may not be commented upon in the same edition or broadcast ...”

Section 33 provides, in so far as relevant, as follows:

“1. The editor-in-chief is under an obligation to refuse publication of the rectification or reply if:

1) it does not fulfil the requirements laid down in section 31 (...)

The editor-in-chief, when refusing to publish a rectification or reply, shall, without undue delay, send the claimant written notification of the refusal and the reasons for it. If the refusal is based on reasons referred to in subsection (1), the editorin-chief shall indicate those parts which cannot be published; the seven-day time-limit for producing an amended correction or reply starts running again from the day on which the refusal and its justification were delivered. The editor cannot refuse to publish a rectification or reply which has been amended in accordance with his or her indications.”

Section 46 provides for the following penal provision:

“Whosoever, in breach of the statutory obligation, refuses to publish a rectification or reply, as referred to in section 31, or who publishes such a rectification or reply contrary to the conditions laid down in this Act, shall be subject to a fine or a restriction of liberty.”

In a judgment of 5 May 2004 the Constitutional Court (P 2/03) examined the constitutionality of the prohibition on making editorial comments on a request for rectification in the same issue of a newspaper in which the rectification was published, which was at that time provided for by section 32 § 6 of the Press Act 1984 and backed up by a criminal sanction provided for by section 46 § 1 of that Act.

In the light of section 32 § 6 of the 1984 Act, the prohibition on publishing comments on requests for rectifications was not absolute, since it was permissible to include such comments in the next issue or broadcast. That prohibition was necessary to protect the freedom of expression of the person having submitted the request for rectification. The challenged provisions of the Press Act made it possible to maintain a balance of power between the media and persons submitting requests for rectifications to be published, with the latter generally having more limited opportunity to publicly express their views.

The court further noted that the practical application of section 46 had given rise to serious difficulties in judicial practice; the Press Act did not formulate any conditions concerning either the form or the substance that would allow for a clear categorisation of a given request submitted to an editor-in-chief as a “rectification” or a “reply”. Hence, editors could have – and in practice did have – serious problems in classifying such submissions. Since it was impossible to provide an unambiguous interpretation of the relevant criminal law norm and no uniform interpretation had been developed in practice, the challenged provision (that is, section 32 § 6 of the Press Act) failed to respect the principle nullum crimen sine lege, enshrined in Article 46 of the Constitution.

As a result, the prohibition on commenting on a rectification in the same issue, hitherto based on that provision, was deprived of its criminal sanction. The remaining elements of the criminal law provision contained in section 46 § 1 of the Press Act retained their binding force.

The court further observed that the prohibition expressed in section 32 § 6 of the Press Act should be secured by an adequately effective sanction, independently of civil liability. It should take into account the principle of proportionality and assume, on the one hand, the protection of the interests of those harmed by press publications and, on the other hand, values linked to the freedom of expression.

On 1 December 2010 the Constitutional Court held that section 46 § 1, sections 31 and 32 § 1 of the Press Act were incompatible with Article 46 of the Constitution. It reiterated its findings concerning the lack of precision in the manner in which criminal offences punishable under those provisions were defined. It further held that as a result of the judgment those provisions were to lose their binding force no later than eighteen months after the judgment was officially published. Until that time, they should be applied by the courts.

Article 23 of the Civil Code contains a non-exhaustive list of rights known as “personal rights” (dobra osobiste). This provision states:

“The personal rights of an individual, such as, in particular, health, liberty, reputation (cześć), freedom of conscience, name or pseudonym, image, secrecy of correspondence, inviolability of the home, scientific or artistic work, [as well as] inventions and improvements shall be protected by the civil law regardless of the protection laid down in other legal provisions.”

Article 24 of the Civil Code provides for ways of redressing infringements of personal rights. In accordance with that provision, a person facing the threat of an infringement may demand that the prospective perpetrator refrain from the wrongful activity, unless it is not unlawful. Where an infringement has taken place, the person affected may, inter alia, request that the wrongdoer make a relevant statement in an appropriate form, or claim just satisfaction from him or her. If an infringement of a personal right causes financial loss, the person concerned may seek damages.

Under Article 448 of the Civil Code, a person whose personal rights have been infringed may seek compensation. That provision, in its relevant part, reads:

“The court may grant an adequate sum as pecuniary compensation for non-material damage (krzywda) caused to anyone whose personal rights have been infringed. Alternatively, the person concerned, regardless of seeking any other relief that may be necessary for removing the consequences of the infringement sustained, may ask the court to award an adequate sum for the benefit of a specific public interest ...”


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

On 2 December 1994 the applicant filed an action with the Vienna Labour and Social Court (Arbeits- und Sozialgericht) against her employer, the General Accident Insurance Company (Allgemeine Unfallversicherungsanstalt). She requested the Court to order her employer to annul her transfer from one department of the hospital where she was working as a nurse to another department.

On 15 May 1995 the Social and Labour Court granted the applicant's action by a judgment in default (Versäumungsurteil) and ordered the defendant to reimburse the applicant's costs, i.e. 33,658 Austrian Schillings (ATS).

On 31 May 1995 the General Accident Insurance Company filed an appeal against the costs order (Kostenrekurs). It submitted that the costs had not been calculated correctly under the Act on Lawyers' Fees (Rechtsanwaltstarifgesetz) and requested their reduction. This appeal was not transmitted to the applicant.

On 19 July 1995 the Vienna Court of Appeal (Oberlandesgericht), sitting in camera, granted the appeal, recalculated the costs to be reimbursed and reduced them to ATS 14,754.