The applicant, Mr Herbert Haupt, is an Austrian national who was born in 1947 and lives in Spittal an der Drau. He was represented before the Court by Gheneff-Rami-Sommer Rechtsanwälte KEG, a partnership of lawyers with its office in Vienna.

Between 2002 and 2004 the applicant was Chairperson of the Austrian Freedom Party (Freiheitliche Partei Österreichs) and, between 28 February 2003 and 20 October 2003, Vice Chancellor of the Federal Government.

On 19 September 2003 a comedy show was aired on ATV+ called “The Worst of the Week” (Das Letzte der Woche), in which a smiling host reported on events of the previous week in a satirical manner. His reports were accompanied by canned laughter. One of the reports concerned the fact that the applicant, then Vice-Chancellor of Austria, had become “godfather” to a baby hippopotamus at Vienna Zoo – a fundraising incentive designed to encourage people to become sponsors of the zoo. The report was illustrated firstly by the host of the programme holding up a photo of the applicant, then by footage of a big and a small hippopotamus strolling around, and then by reverting to footage of the host again. During the report, the host narrated the following text:

“Vice-Chancellor Herbert Haupt is godfather to a baby hippopotamus at Vienna Zoo. Haupt, the leader of the FPÖ [the Austrian Freedom Party], has already visited his godchild. The bigger animal is in fact the Vice-Chancellor. Both got along very well right from the start. There are many similarities: they are both usually surrounded by a lot of brown rats.”

On 13 October 2003 the applicant lodged a claim for compensation for non-pecuniary damage under section 6 of the Media Act (Mediengesetz), in conjunction with Article 115 of the Criminal Code (Strafgesetzbuch), against ATV Privat TV GmbH & Co KG (hereinafter “ATV”), the owner of the television channel ATV+, alleging that he had been insulted by the expression “brown rats”.

On 25 November 2003 the Vienna Regional Criminal Court (Straflandesgericht) dismissed his claim. It held that the applicant had not been called a brown rat, but had rather been compared to a nice and pleasant hippopotamus. The suggestion that the applicant surrounded himself with people of an extreme right-wing ideology did not constitute an insult, especially since the report did not allege that it was his wish to be in contact with those people. Moreover, the report did not show any footage of brown rats in the zoo and was clearly satirical; thus, not even people in the applicant’s day-to-day life could have felt insulted.

On 12 February 2004 the Court of Appeal allowed an appeal by the applicant, quashing the first-instance decision and referring the case back to the Regional Court. It agreed with the Regional Court’s finding that the applicant had not been insulted by the statement in question, but disagreed with its finding that it was the responsibility of politicians to choose who they surrounded themselves with. Consequently, the statement had amounted to defamation under Article 111 of the Criminal Code. It further held that proceedings should be remitted to the court of first instance in order to give the opposing party the opportunity to give its side of the story.

On 17 May 2004, the Regional Criminal Court, after hearing the applicant, ruled in his favour and ordered ATV to pay him compensation of 2,000 euros (EUR) and to retract the statement at issue. It held that ATV had failed to prove that the applicant had close links to people following an extreme right-wing ideology. The court refused to examine the three witnesses requested by ATV because it found that the latter had failed to substantiate the relevance of the requested witnesses to the proceedings.

On 10 January 2005 the Court of Appeal dismissed an appeal by ATV and upheld the Regional Court’s judgment of 17 May 2004. It also confirmed that the request for the three witnesses to be cross-examined had been unfounded in that it would not have served to prove the allegation that the applicant did not distance himself enough from people of questionable ideology in his day-to-day life.

On 26 June 2005 ATV introduced an application with the Court in which it complained that its conviction and the order for it to pay compensation to the applicant had violated its rights under Article 10 of the Convention (application. no. 25620/05).

On 29 May 2008 that application was communicated to the Austrian Government.

Following the communication of the application in the present case, the Government informed the Court that the Procurator General’s Office (Generalprokuratur) had requested the Supreme Court (Oberster Gerichtshof) to quash the Regional Court’s judgment of 17 May 2004 and the Court of Appeal’s judgment of 10 January 2005 and to allow the extraordinary reopening of the proceedings against ATV, in accordance with Article 362 § 1 of the Code of Criminal Procedure.

In a judgment of 24 June 2009 the Supreme Court granted the Procurator General’s request and remitted the case to the Vienna Regional Court. It found that (i) there were serious doubts regarding the correctness of the judgments in question as to how the contents of the transmission of the television programme at issue had been assessed and (ii) the Court of Appeal had not paid sufficient attention to the case-law of the European Court of Human Rights and the Supreme Court in this regard, particularly in the light of the principles laid down by the Court in the cases of Nikowitz and Verlagsgruppe News GmbH v. Austria (no. 5266/03, 22 February 2007) and Vereinigung Bildender Künstler v. Austria (no. 68354/01, 25 January 2007). Having regard to the findings of the Court of Appeal the Supreme Court considered that in the present case it was irrelevant whether the applicant had or had not identified himself with National Socialist statements, because the criticism contained in the reference to brown rats in his surroundings expressed the reproach that he had not properly distanced himself from such statements.

In the Supreme Court’s view it was common knowledge (gerichtsnotorisch) that at the time of the broadcast of the programme several politicians belonging to the Freedom Party had made neo-Nazi statements. The impugned statement from the broadcast therefore expressed a political criticism of Freedom Party party officials around the applicant and of his failure to distance himself from problematic statements made by them. Because the Court of Appeal had misinterpreted the main reproach made by the programme in respect of the applicant, there had been no collection and assessment of any evidence regarding the question of whether or not the applicant had made any statement distancing himself from statements uttered by Freedom Party officials. Thus, the Supreme Court ruled that the lower courts had to collect and assess further evidence in order to clarify this issue.

In the reopened proceedings, the Vienna Regional Criminal Court on 16 October 2009 dismissed the applicant’s claim for compensation and also ordered him to bear the costs in respect of the proceedings incurred by the opposing party. As regards the examination of evidence, the Regional Court listed a number of extreme right-wing or neo-Nazi statements made by high-ranking politicians belonging to the Freedom Party. It found further that the applicant had not publicly dissociated himself from these statements. Therefore, the impugned statement from the broadcast did not concern the applicant’s private and personal sphere but rather his professional, public position as a politician. It constituted a political criticism of the attitude and statements of the politicians from the Freedom Party referred to above and the manner in which the applicant had reacted to them.

On 10 March 2010 the Vienna Court of Appeal dismissed an appeal by the applicant against that judgment. It confirmed the findings of the Regional Criminal Court. As regards the applicant’s submissions concerning a breach of Article 1 of Protocol no. 1, the Court of Appeal – referring to the consistent case-law of the Supreme Court – found that there would be no breach of Article 1 of Protocol no. 1 if in proceedings following an extraordinary reopening of proceedings compensation already granted were to be annulled. On 18 March 2010 the lawyer of ATV submitted to the applicant’s lawyer a breakdown of its costs in respect of the proceedings and requested their reimbursement. On an unspecified date the applicant reimbursed those costs.

On 29 January 2013 the Court struck application no. 25620/05 out of its list of cases. It found that, following the setting-aside of the domestic judgments that ATV had complained of (the reopening of the proceedings in which the Vienna Regional Court had followed the Supreme Court’s line of reasoning and dismissed in its judgment of 16 October 2009 the compensation claim) the matter had been resolved within the meaning of Article 37 § 1 (b) of the Convention.

If the publication of an article in a media outlet, viewed objectively, constitutes defamation or an insult within the meaning of Articles 111 and 115 of the Criminal Code respectively, the person defamed or insulted may claim compensation for non-pecuniary damage from the owner of the media outlet in question, under section 6 of the Media Act.

Articles 111 and 115 of the Criminal Code, in so far as relevant, read as follows:

“1. Any person who accuses another person – as it may be perceived by a third party – of having a contemptible character or attitude, or of behaving contrary to honour or morality, in such a manner as to render him contemptible or otherwise lower him in public esteem, shall be liable to a term of imprisonment not exceeding six months or a fine ...

Anyone who commits this offence in a printed document, by broadcasting or otherwise, in such a way as to render the defamation accessible to a broad section of the public, shall be liable to a term of imprisonment not exceeding one year or a fine ...

A person making [such a] statement shall not be punished if it is proved to be true. As regards the offence defined in paragraph 1, he shall also not be held liable if circumstances are established which give him sufficient reason to assume that the statement was true.”

“1. Anyone who, either in public or in the presence of several others, insults, mocks, mistreats or threatens to mistreat a third party, shall be liable to imprisonment not exceeding three months or a fine ... unless he is liable to a more severe penalty under another provision ... ”

Section 6 of the Media Act, as in force at the time of the events, read as follows:

“(1) Where a medium publishes statements which constitute the actus reus of disparagement, insult, derision or defamation the victim shall have a claim against the owner of the medium ... for damages for the injury suffered ...”

(2) No claim shall arise under subsection (1) above where:

Article 362 § 1 of the Code of Criminal Procedure, as in force since 2008, reads as follows:

“The Supreme Court may, after hearing the Procurator General and without being bound by the conditions set out in Article 353, allow the exceptional reopening of criminal proceedings to the benefit of a person convicted of a crime if an examination of the case file

(i) in the course of the preliminary deliberations on a plea of nullity or following a public hearing ...; or

(ii) upon a special request made by the Procurator General ...

raises considerable doubts as to the correctness of the facts on which a conviction has been based and which cannot be dispelled by further investigations ordered by the Supreme Court itself.”

Article 1435 of the Civil Code (Allgemeines Bürgerliches Gesetzbuch) reads as follows:

“Even things which have been transferred in order to honour a genuine debt may be reclaimed by the donor from the beneficiary if the legal cause for keeping them has ceased to exist.”

Article 363a of the Code of Criminal Proceedings, as in force since 1 March 1997, provides under the heading “Renewal of criminal proceedings” (Erneuerung des Strafverfahrens) as follows:

“1. If it is established in a judgment of the European Court of Human Rights that there has been a violation of the Convention for the Protection of Human Rights and Fundamental Freedoms (Official Gazette [Bundesgesetzblatt] no. 210/1958) or of one of its Protocols on account of a decision [Entscheidung] or order [Verfügung] of a criminal court, a retrial shall be held on application in so far as it cannot be ruled out that the violation might have affected the decision in a manner detrimental to the person concerned.

All applications for a retrial shall be decided by the Supreme Court. Those who are affected by the determined violation as well as the Procurator General’s Office are entitled to file an application. Article 282 § 1 of the Code of Criminal Proceedings shall be applicable analogously. The application is to be filed at the Supreme Court. If the Procurator General’s Office files an application, those who are affected, if the one affected files an application the Procurator General’s Office, shall be heard. Article 35 § 2 of the Code of Criminal Proceedings shall be applicable analogously.”

Further information on this provision may be found in ATV Privatfernseh GmbH v. Austria (dec.) (no. 58842/09, §§ 18-22, 6 October 2015).


Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation)

The applicant was born in 1992 and lives in Istanbul.

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

On 15 February 2009 the applicant was arrested by police officers from the Istanbul Police Headquarters on suspicion of being involved in the activities of a terrorist organisation.

On 18 February 2009 the applicant’s statement was taken by the public prosecutor. The same day the investigating judge at the Istanbul Assize Court ordered that the applicant be detained on remand taking into account the strong suspicion that the applicant had committed the offence he was charged with and risk of tampering with evidence.

On 27 March 2009 the Istanbul public prosecutor filed an indictment with the Istanbul Assize Court. He charged the applicant with membership of an armed terrorist organisation, making the propaganda of an armed terrorist organisation, contravening the Meetings and Demonstration Marches Act (Law no. 2911), and causing damage to public property.

On 5 May 2009 at the end of the preparatory hearing, the Istanbul Assize Court decided that the applicant’s detention should be continued taking into account the nature of the offence, the state of evidence and the fact that his statements had not yet been taken.

On 2 October 2009 the applicant’s trial resumed. At the first hearing, in the presence of the applicant, the court ordered that the applicant’s detention on remand be continued on the same grounds.

At hearings held on 16 February 2010 and 8 June 2010, respectively, the applicant’s requests to be released from detention on remand were rejected by the trial court. The applicant filed objections against these decisions. On 15 March 2010 and 7 July 2010, the Istanbul Assize Court dismissed the objections. The court decided on the basis of the case file, without holding a public hearing. In delivering its decisions, the court also took into consideration the written opinion of the public prosecutors, which had not been communicated to the applicant or his representative.

On 23 November 2010 the Istanbul Assize Court released the applicant from detention on remand taking into account the period he had remained in detention.

On 17 October 2010 the case was transferred to the Juvenile Court.

According to the information in the case file, the case is still pending before the Istanbul Anadolu Juvenile Court.


Preliminary objection joined to merits and dismissed (Article 35-3 - Ratione personae);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Access to court);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Branko Lubarda;Dmitry Dedov;George Nicolaou;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra

The applicant was born in 1970 and lives in Stockholm. He is self-employed and runs a business.

On 22 April 2004 the Swedish commercial television channel TV3 broadcast an episode of a television show entitled “Insider”, in which it was claimed that “shady transactions and shady characters” were revealed. The show was broadcast live with a few recorded features. In the show, the applicant, who was unknown to the broader public, appeared in pictures and was mentioned by name. He was singled out as the central figure of organised crime within media and advertising and as being guilty of several counts of fraud and other economic offences. The programme was rebroadcast on 25 April and 17 September 2004. At this time, no criminal investigation had been initiated against the applicant.

The television programme was produced in Sweden by the Swedish company Strix Television AB. It was sent by satellite link from Sweden to the London-based company Viasat Broadcasting UK Ltd and from there sent unaltered to a satellite which transmitted the programme to the Swedish audience. The encoded programme was viewable via a satellite receiver or a cable connection in Sweden a fraction of a second after it had been sent by satellite link. Even if it was viewable in the United Kingdom, which is doubtful, it would have been watched there by a small audience. It was presented in the Swedish language for a Swedish-speaking audience, and was sponsored by companies competing in the Swedish market. The anchorman of the show, X, a Swedish national, was a celebrity and a well-known television personality in Sweden; he was also the Chief Executive Officer of Strix Television AB. The show had a long run and was watched by many viewers.

In October 2006 the applicant brought a private prosecution against X for gross defamation, claiming damages in the amount of 250,000 Swedish kronor (SEK; approximately 27,000 euros). He maintained that he had been unreservedly pointed out as the central figure of organised crime within media and advertising and as being directly or indirectly responsible for a large number of serious crimes. He further alleged that X was responsible for the content of the programme since he had failed in his duty to appoint a legally responsible editor (ansvarig utgivare) for the programme and because he had been its anchor.

The applicant relied on Chapters 5 and 6 of the Constitutional Law on Freedom of Expression (Yttrandefrihetsgrundlagen, 1991:1469; hereafter “the Constitutional Law”), regarding freedom of expression offences and liability rules, and Chapter 5 of the Penal Code (Brottsbalken), dealing with defamation, as well as Articles 6 § 2, 8 and 13 of the Convention. In the latter respect, he argued that his appearance in the show breached his right to privacy as well as his right to be presumed innocent and that a decision to dismiss his claims would constitute a violation of his right to an effective remedy. The applicant submitted a legal opinion stating that it would be impossible, or at least not useful, to bring an action in the United Kingdom in the present case since the damage flowing from the television programme at issue had not occurred in the United Kingdom.

X disputed the claim on the grounds, inter alia, that he was not the responsible editor of the show and that he enjoyed the freedom to communicate information as provided for under Chapter 10, section 2 of the Constitutional Law and as clarified by the Supreme Court (Högsta domstolen) in the case NJA 2005 p. 884 (see paragraphs 32 and 33 below).

In a preliminary ruling on 20 May 2008 the Stockholm District Court (Stockholms tingsrätt) dismissed the claim in so far as it was based on the Constitutional Law. It referred to the Supreme Court judgment in an almost identical case, NJA 2002 p. 314 (see paragraphs 28-31 below), and held that Chapters 1-9 of the Constitutional Law were not applicable to the television programme since it could not be regarded as emanating from Sweden. This was because the programme had first been sent by satellite link to Viasat Broadcasting UK Ltd, the British company responsible for the programme content, and thereafter uplinked to a satellite, which had in turn transmitted the programme to viewers in Sweden. As Chapters 1-9 of the Constitutional Law were not applicable, X could not be held responsible for the programme content under Chapter 6. The District Court further held that the applicant’s claims under the Penal Code were to be determined following the main hearing in the case. The court finally drew the parties’ attention to the Supreme Court case NJA 2005 p. 884.

The applicant appealed, repeating what he had stated in his earlier submissions. He further argued that all companies involved in the case were Swedish, including the receiving company in London, allegedly named Viasat AB, with its seat in Stockholm. Although Viasat AB had acquired the right to transmit the show from the Swedish company TV3 AB, it had had no impact on or responsibility for the programme selection. Having regard to the above, the offence committed against the applicant through the programme could not be examined by United Kingdom courts. The applicant also submitted that Swedish courts were competent to examine the case under the Brussels I Regulation (see further paragraph 35 below). X contested the arguments and submitted that it was the company Viasat Broadcasting UK Ltd, whose seat was in the United Kingdom, which was responsible for the programme service and decided on the final content of the programmes.

On 20 March 2009 the Court of Appeal (Svea hovrätt) upheld the District Court’s decision. It held that the issue for it to determine was whether the general provisions in the Constitutional Law were applicable to the programme in question, that is, whether or not the broadcasting of the programme could be considered to have originated from Sweden within the meaning of Chapter 1, section 6(2) of that law. It further stated that the burden of proof concerning the applicability of the Constitutional Law rested on the applicant and that he had not, in response to X’s refutation, established that the decisions concerning the programme content were taken in Sweden. Consequently, Chapters 1-9 of the Constitutional Law were not applicable in the case. The court further held that the material before it indicated that it was possible for the applicant to bring claims before a British court.

The applicant appealed and referred to his earlier submissions. In addition, he requested that a question concerning the interpretation of the Brussels I Regulation be referred to the Court of Justice of the European Union (ECJ) for a preliminary ruling. According to the applicant, the regulation entitled a person claiming non-contractual damages to bring actions where the harmful event occurred. In the present case, the harmful event had occurred in Sweden and the applicant thus should have had the right to bring his action before the Swedish courts. Consequently, the position hitherto taken by the Swedish courts ran contrary to Community law.

On 21 September 2009 the Supreme Court rejected the applicant’s referral request and refused leave to appeal in the case. It held that, since the District Court had found itself competent to examine the applicant’s claims in so far as they were based on grounds other than the Constitutional Law, there was no reason to request a preliminary ruling from the ECJ.

The applicant subsequently withdrew his remaining claims before the District Court since there was no practical prospect of success in a continued procedure. On 17 November 2009 the District Court struck the case out of the list and ordered the applicant to pay X’s legal costs and expenses.

Criminal proceedings were taken against the applicant in regard, inter alia, to the matters described in the television programme. He was convicted of aggravated fraud as well as tax and bookkeeping offences and sentenced to five years’ imprisonment. The criminal proceedings were finalised by a Supreme Court decision to refuse leave to appeal on 4 October 2010. These proceedings, in particular their compliance with Articles 6 and 7 of the Convention, are the subject of an application lodged with the Court on 4 April 2011 (no. 32814/11).


Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time)

Jon Fridrik Kjølbro;Julia Laffranque;Ledi Bianku;Paul Lemmens;Robert Spano

The applicant was born in 1975 and is detained in Kahramanmaraş.

On 19 November 2003 the applicant was taken into police custody on suspicion of membership of an illegal organisation, namely the PKK/KADEK (Workers’ Party of Kurdistan/Kurdistan Freedom and Democracy Congress). It appears that at some point the applicant confessed to committing an armed attack on a prison vehicle in Adana and, as a result, on 21 November 2003 at 3 p.m. was required to participate in a reconstruction of the events (yer gösterme). According to the record drafted by police officers and signed by the applicant, the latter described in detail what steps he had taken before the attack on a prison vehicle in Adana and indicated how he had opened fire on that vehicle.

On the same day, he was taken to the Dörtyol police station for questioning. The questioning took place between 8.10 p.m. and 11.50 p.m. the same day and 10 a.m. and 3.45 p.m. the following day. The applicant’s statements to the police were transcribed on pre-printed forms, the relevant part of which was filled in to indicate, inter alia, that the applicant was suspected of membership of an illegal organisation and of carrying out armed activities on behalf of that organisation. On the first page of the forms there was a pre-printed message stating, inter alia, that the person being questioned had the right to remain silent and the right to choose a lawyer. It appears from the form that the applicant had refused legal assistance since the first page of the record includes a pre-printed phrase stating “No lawyer sought” with the applicant’s signature underneath. He was thus questioned in the absence of a lawyer.

In his statement, the applicant admitted that he was a member of the PKK/KADEK and that he was active in the organisation. In particular, he gave detailed information about, inter alia, an armed attack on a prison vehicle in Adana. He also stated that his code name was “Hüseyin”.

On 23 November 2003 he was brought before the Dörtyol public prosecutor, where he partly confirmed and partly denied the content of his statements to the police made in the absence of a lawyer. Prior to this he had been told his rights, including the right to benefit from the assistance of a lawyer. He further stated that he was a member of the PKK/KADEK and had been involved in some of its activities in northern Iraq but had not taken part in any political or armed activities in Turkey.

On the same day, an investigating judge of the Adana State Security Court took statements from the applicant. Prior to the interview, the applicant was informed of his rights under Article 135 of the former Code of Criminal Procedure. He did not ask for a lawyer. During the interview, the applicant stated that his statements made to the police and the public prosecutor had been correct. He maintained, in particular, that his statements made to the police in respect of the armed attack in Adana had been entirely correct. The court ordered the applicant’s pre-trial detention.

During the applicant’s period in custody, specifically from 19 to 23 November 2003, he was examined six times by doctors. The medical examinations conducted before and at the end of his custody period revealed no signs of ill-treatment on his body.

Prior to the applicant’s arrest, on 27 October 2003, a certain H.K., who was a co-accused, had claimed during questioning that he had organised the armed attack, acting with someone whose code name was “Hüseyin”. Later, at the first court hearing, he retracted his statements to the police, alleging that they had been extracted under duress.

On 23 December 2003 the Adana public prosecutor lodged an indictment, charging the applicant with the offence of breaking up the unity of the State and seeking to remove part of the national territory from the State’s control, under Article 125 of the former Criminal Code.

On 16 March 2004, at the first hearing in the case, the applicant retracted his statements made to the police, the public prosecutor and the investigating judge, alleging that they had been obtained through coercion and death threats by the police. He admitted that he was a member of the PKK/KADEK while denying involvement in the armed attack in Adana. When asked about the reports of the reconstruction of events, the applicant submitted that he had not accepted the evidence against him.

State Security Courts were abolished on 16 June 2004 pursuant to Law no. 5190. The case was therefore transferred to the Adana Assize Court.

On 10 February 2005 the applicant’s lawyer applied to the court to have a certain F.Y. summoned as a witness and to hold a confrontation with the applicant, as F.Y. had stated in his witness statements dated 16 October 2003 that he had seen the perpetrators of the attack. He also asked the court to enquire of the banks as to whether there had been any money transferred between the applicant’s father and H.K. The court dismissed the application concerning the attendance of a witness, on the grounds that the witness would not remember the incidents given the long time which had elapsed and that he would not tell the truth owing to the nature of the incident. It further dismissed the other request concerning the transfer of money, considering it not to be essential for the purposes of the case.

On 11 December 2005 the applicant sent a letter to the trial court in which he explained the threats and coercion he had been subjected to in detail and asked the court not to take his co-accused’s statements into consideration.

On 22 December 2005 the Adana Assize Court convicted the applicant as charged.

On 28 December 2005 the applicant’s lawyer appealed against that judgment and alleged, inter alia, that the applicant’s statements had been taken without notifying him of his rights and as a result of coercion and death threats by the police. The applicant’s lawyer gave detailed accounts of such treatment and asked the Court of Cassation not to rely on these statements which had been obtained by impairing the applicant’s will.

On 12 October 2006 the Court of Cassation quashed the conviction for procedural shortcomings.

At a hearing on 22 June 2007, the applicant’s lawyer once again maintained that the applicant’s confessions had taken by coercion and that the applicant had been forced by the police to sign his statements. He asked the trial court not to rely on those statements. At the same hearing, the first-instance court again convicted the applicant under Article 125 of the Criminal Code then in force, and sentenced him to life imprisonment. It relied, inter alia, on the consistent confessions of the applicant and H.K. made during questioning, which were later repeated before the public prosecutor and the investigating judge, and the record of the reconstruction of events. It also took into account the weapons, bullets and explosives seized by the judicial authorities and the organisational documents as well as the incident report, hotel records, an autopsy and expert reports, photographs, witness statements and investigation reports. The trial court’s reasoned judgment did not contain any pronouncements as regards the admissibility of the applicant’s pre-trial statements.

On the same day, the applicant’s lawyer appealed against that judgment and alleged, inter alia, that the applicant’s statements had been taken without notifying him of his rights and as a result of coercion and death threats by the police. The applicant’s lawyer gave detailed accounts of such treatment and asked the Court of Cassation not to rely on these statements which had been obtained by impairing the applicant’s will.

On 12 February 2009 the Court of Cassation upheld the conviction.

On 18 February 2009 the judgment was pronounced in the absence of the applicant and his lawyer.


CASE OF THE NATIONAL UNION OF RAIL, MARITIME AND TRANSPORT WORKERS v. THE UNITED KINGDOM

Remainder inadmissible;No violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of association)

George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Paul Mahoney

The applicant is a trade union based in London with a membership of more than 80,000 persons employed in different sectors of the transport industry in the United Kingdom.

Noting that in the domestic system industrial disputes are governed by very detailed legislative provisions, the applicant union raised two specific limitations on the statutory protection of strike action that it submitted were inconsistent with Article 11 of the Convention, each of the contested limitations being exposed by a separate set of facts.

The relevant set of facts relied on under this head involved the company EDF Energy Powerlink Ltd. (EDF), which was under contract to manage, operate and maintain the electrical power network used by London’s underground transport system. The RMT was one of several trade unions recognised by the company for the purposes of collective bargaining. In all, the company employed some 270 staff at three different sites, the biggest one being that at Tufnell Park with 155 employees. According to the applicant union, there were 52 RMT members there at the relevant time. The company would not have known which of its employees were members of a trade union, as it did not operate a system for deducting union subscriptions from staff wages.

Between June and September 2009, the applicant union and the company held several rounds of negotiation on pay and conditions of service. Dissatisfied with the company’s offer, it decided to embark on industrial action and on 24 September gave the requisite ballot notice to the company (see paragraph 18 below). The notice described the category of workers that would be voting on industrial action as “Engineer/Technician” and stated how many of such were based at each site. The following day the company wrote to the applicant union, stating that it did not recognise the term “Technician” (it categorised its workers in a more precise way: fitters, jointers, test-room inspectors, day testers, shift testers, OLBI fitters). It considered the ballot notice served on it was therefore not compliant with the relevant statutory provisions. The applicant union replied the following week, maintaining that the term it had used was sufficient to allow the company to know which employees were concerned, thereby meeting the purpose of the relevant provisions of law.

Following a further exchange of correspondence between the two sides, the company applied to the High Court for an injunction to restrain the applicant union from calling industrial action on the basis of the ballot. The injunction was granted by Blake J on 23 October 2009.

The judge did not accept the applicant union’s claim that the statutory requirements unduly restricted the exercise of its right to call industrial action, this same argument having been rejected by the Court of Appeal in the case of Metrobus Ltd v. Unite the Union ([2009] EWCA Civ 829). He also rejected the argument that since the procedure was still at an early stage it would be premature to put a stop to it. Instead he considered the risk of unlawful strike action to be sufficiently imminent to justify the injunction. Given the sector involved, the implications of a shutdown would be substantial, with widespread ramifications elsewhere. Addressing the question whether the applicant union had in fact given sufficient indication of the category of staff that would be balloted, the judge found that it had not, since the union’s members at Tufnell Park included persons working at different trades. The applicant union was not under an absolute duty, but instead a duty to do its reasonable best to provide sufficient information to the company. The fact that it used its own system of job classification was relevant but not decisive. Similarly, the fact that a union might not record or possess such information could be a highly material consideration, but not necessarily a decisive one. The applicant union had accepted that it was practicable for a union to supply the necessary information in the context of a small place of employment – it was therefore neither onerous nor unreasonable to require it to do so. Finally, the judge observed that while there was as yet no stated intention on the part of the applicant union to call a strike (the ballot not having taken place), there was a clear nexus between the failure to provide the requisite notice and the employer’s ability to respond to the situation either by making preparations for a work stoppage or seeking to persuade employees not to vote for industrial action. The applicant union’s failure to comply with the statutory requirements was therefore not a mere technical or immaterial breach.

Application for permission to appeal was refused on the papers on 24 November 2009. Renewed application for permission to appeal was refused on 26 January 2010, by which point the industrial dispute between the applicant union and EDF had already been resolved.

Following the granting of the injunction against the strike, the applicant union set about gathering the precise job descriptions of the workers concerned and included these in a fresh notice of a strike ballot, the result of which supported industrial action. This went ahead on dates in December 2009 and early January 2010. EDF made an improved offer on 7 January 2010 which was accepted by the union’s members and took effect as a collective agreement on 1 April of the same year.

The set of facts relied on under this head involved some RMT members who were employed in railway maintenance by Fastline Limited, a company that formed part of a group of companies known as Jarvis plc. Another company in the group, Jarvis Rail Limited, was engaged in rail engineering work. At the time, Fastline and Jarvis Rail Limited (“Jarvis”) employed approximately 1,200 persons in total, 569 of whom were members of the RMT. In August 2007, Fastline transferred part of its undertaking, comprising twenty employees, to another company known as Hydrex Equipment (UK) Ltd (“Hydrex”). These employees’ existing terms and conditions were preserved by Hydrex, as required by law (Transfer of Undertakings (Protection of Employment) Regulations 2006). According to the applicant union, the employees involved were nonetheless concerned for their situation, as Hydrex workers were paid significantly less. It also appeared that trade unions had less influence in that company.

In March 2009 Hydrex’s management informed the ex-Jarvis employees that because of difficult market conditions it intended to reduce the level of their terms and conditions to that of other Hydrex staff. This meant a reduction in salary of some 36-40%, according to the applicant union. In the months that followed, the applicant union made representations to Hydrex on behalf of the employees concerned but without achieving any agreement. When the company indicated that it intended to proceed with its plan, the applicant union organised a strike ballot of the workers concerned (seventeen by that stage). They voted in favour of a strike, which took place between 6 November and 9 November 2009. During the strike, the participants organised pickets at a number of the sites where they normally carried out their work. This caused Hydrex to write to the applicant union to remind it that by law picketing could take place only at or near the employer’s premises and to warn that the union was exposing itself to liability for any economic loss incurred by the company due to this unlawful action (see paragraph 19 below).

A second strike was announced for 18-20 November 2009, but this was postponed when Hydrex indicated its willingness to resume discussions with the applicant union. This led to a revised offer which the union submitted to its Hydrex members, recommending that they accept it. The result of the vote was known on 21 December 2009. Nine votes were cast, all of them rejecting the Hydrex offer. According to the applicant union, its position was extremely weak given the very small number of its members in the Hydrex workforce. These were far too few for their strike action to have any appreciable effect on the company, whose activities had not really been disrupted at all. The applicant union considered that it would have been in a position to defend its members’ interests much more effectively had it been able to mobilise its Jarvis members as well. The simple threat of a strike on this scale, and a fortiori an actual stoppage, would have exerted significantly more pressure on Hydrex to maintain existing terms and conditions. The applicant union stated that Jarvis employees would have been willing to strike in support of their colleagues at Hydrex. Instead, the Hydrex members had had to stand alone, and in the end had no option but to accept the new terms and conditions. They did so under protest.

According to the applicant union, neither Jarvis nor Hydrex exist any longer, having been put into administration in March 2010 and November 2011 respectively. The Hydrex undertaking was purchased by another company, which in turn sold it on in November 2012.

In relation to the EDF case, Blake J referred to the following provisions of the Trade Union and Labour Relations (Consolidation) Act 1992 (“the 1992 Act”):

“(1) An act done by a trade union to induce a person to take part, or continue to take part, in industrial action

(a) is not protected unless the industrial action has the support of a ballot, and

(b) where section 226A falls to be complied with in relation to the person’s employer, is not protected as respects the employer unless the trade union has complied with section 226A in relation to him.”

“(1) The trade union must take such steps as are reasonably necessary to ensure that—

(a) not later than the seventh day before the opening day of the ballot, the notice specified in subsection (2), ...

is received by every person who it is reasonable for the union to believe (at the latest time when steps could be taken to comply with paragraph (a)) will be the employer of persons who will be entitled to vote in the ballot.

(2) The notice referred to in paragraph (a) of subsection (1) is a notice in writing—

(a) stating that the union intends to hold the ballot,

(b) specifying the date which the union reasonably believes will be the opening day of the ballot, and

(c) containing—

(i) the lists mentioned in subsection (2A) and the figures mentioned in subsection (2B), together with an explanation of how those figures were arrived at, or

(2A) The lists are—

(a) a list of the categories of employee to which the employees concerned belong, and

(b) a list of the workplaces at which the employees concerned work.

(2B) The figures are—

(a) the total number of employees concerned,

(b) the number of the employees concerned in each of the categories in the list mentioned in subsection (2A)(a), and

(c) the number of the employees concerned who work at each workplace in the list mentioned in subsection (2A)(b).

(2D) The lists and figures supplied under this section, or the information mentioned in subsection (2C) that is so supplied, must be as accurate as is reasonably practicable in the light of the information in the possession of the union at the time when it complies with subsection (1)(a).”

In relation to the Hydrex situation, the statutory protection against liability in tort regarding acts done “in contemplation or furtherance of a trade dispute” (section 219 of the 1992 Act) is confined, by section 244 of the same Act, to “a dispute between workers and their employer”. Secondary action is expressly excluded from statutory protection by section 224 of the Act, which defines it as follows:

“(2) There is secondary action in relation to a trade dispute when, and only when, a person—

(a) induces another to break a contract of employment or interferes or induces another to interfere with its performance, or

(b) threatens that a contract of employment under which he or another is employed will be broken or its performance interfered with, or that he will induce another to break a contract of employment or to interfere with its performance,

and the employer under the contract of employment is not the employer party to the dispute.”

The provisions on peaceful picketing are contained in section 220 of the Act, which provides:

“(1) It is lawful for a person in contemplation or furtherance of a trade dispute to attend—

(a) at or near his own place of work, or

(b) if he is an official of a trade union, at or near the place of work of a member of the union whom he is accompanying and whom he represents,

for the purpose only of peacefully obtaining or communicating information, or peacefully persuading any person to work or abstain from working.

(2) If a person works or normally works—

(a) otherwise than at any one place, or

(b) at a place the location of which is such that attendance there for a purpose mentioned in subsection (1) is impracticable,

his place of work for the purposes of that subsection shall be any premises of his employer from which he works or from which his work is administered.”

Both parties referred to the previous legislative regime, which included secondary action in the scope of the statutory protection. The Government explained that secondary action was first outlawed by the Trade Disputes and Trade Unions Act 1927, adopted in the aftermath of the general strike of 1926. The situation changed with the Trade Disputes and Trade Unions Act 1946, which lifted the ban.

Further reforms occurred in the 1970s. The Trade Union and Labour Relations Act 1974 afforded substantially broader protection to industrial action than is the case at present. It provided at section 13(1) (as amended in 1976):

“An act done by a person in contemplation or furtherance of a trade dispute shall not be actionable in tort on the ground only—

(a) that it induces another person to break a contract or interferes or induces any other person to interfere with its performance; or .

(b) that it consists in his threatening that a contract (whether one to which he is a party or not) will be broken or its performance interfered with, or that he will induce another person to break a contract or to interfere with its performance.”

This provision was considered by the House of Lords in the case of Express Newspapers Ltd v. McShane and another ([1980] AC 672). The case involved secondary action in the newspaper industry, led by the National Union of Journalists. The majority of the House held that the test to be applied to determine whether an act enjoyed the protection of section 13(1) was a subjective one, that is to say, it was sufficient that the person honestly believed that the act in question might further the cause of those taking part in the dispute. The genuineness of such belief could be tested by the courts, but the person calling the strike did not need to prove that it was reasonably capable of achieving the objective. Lord Wilberforce dissented on the nature of the test, but concurred with the finding that the injunction granted against the union should be discharged.

Although the applicant union maintained that the McShane judgment was not a significant development in the law, in that it merely confirmed the interpretation of clear statutory language, the case was referred to during the parliamentary debates leading to the passage of the Employment Act 1980 as one of the reasons for introducing restrictions on secondary action (in section 17 of that Act). The 1980 Act retained immunity for secondary action provided that three conditions were satisfied: (i) that it was taken against first suppliers or customers of the employer in dispute or against associated employers of the employer which were substituting for it during the dispute; (ii) that its principal purpose was to directly prevent or disrupt the supply of goods or services between the employer in dispute and his supplier or customer during the dispute; and (iii) that it was likely to achieve that purpose.

The current rule was originally introduced by the Employment Act 1990, and then re-enacted in the 1992 Act in the terms set out above.

The parties provided statistical information on the number of days lost to industrial action in the United Kingdom, going back to the 1970s. The Government pointed out that in that decade, the average number of days lost each year was 12.9 million. This decreased in the 1980s to an average of 7.2 million days. From the early 1990s to the present day, the figure is much lower, standing at 700,000 days lost per year on average. They attributed part of this decline at least to the ban on secondary action. The applicant union disputed that interpretation. It noted that the available statistics did not distinguish between primary and secondary strikes. It was therefore impossible to identify the true extent of secondary action before 1980 and, consequently, impossible to ascertain the impact of the restrictions introduced in 1980 and 1990. In the applicant union’s view, secondary action had been relatively rare, the overwhelming majority of strikes at that time had been primary strikes. It referred to official figures (contained in a Government publication, the “Employment Gazette”) indicating that, since the 1960s, the United Kingdom was consistently close to the European average for days lost to industrial action. According to this source, the country had been middle-ranking since the end of the 1970s. The only exception was for 1984, on account of the long and widespread strike in the mining industry that year. The Government submitted that the comparative statistics needed to be interpreted with caution, given the profound transformation of Europe over the past twenty years. The fact that the United Kingdom remained close to the European average in this regard indicated that, contrary to the applicant union’s point of view, the rules on industrial action were not so restrictive as to make it excessively difficult to organise strikes.

In support of its application, the applicant union included references to other international legal instruments, and the interpretation given to them by the competent organs. The most relevant and detailed of these materials are referred to below.

While there is no provision in the Conventions adopted by the International Labour Organization (ILO) expressly conferring a right to strike, both the Committee on Freedom of Association and the Committee of Experts on the Application of Conventions and Recommendations (“the Committee of Experts”) have progressively developed a number of principles on the right to strike, based on Articles 3 and 10 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) (summarised in “Giving globalization a human face”, International Labour Office, 2012, § 117). This Convention was ratified by the United Kingdom on 27 June 1949.

The Committee of Experts has commented several times upon the notice requirements for industrial action in the United Kingdom. The applicant union referred to the following statement, adopted in 2008:

“In its previous comments, the Committee had taken note of comments made by the TUC to the effect that the notice requirements for an industrial action to be protected by immunity were unjustifiably burdensome. The Committee notes that according to the Government, a number of measures have already been taken to simplify sections 226-235 of the TULRA and 104-109 of the 1995 Order; moreover, as part of a plan published in December 2006 to simplify aspects of employment law, the Government explicitly invited trade unions to come forward with their ideas to simplify trade union law further. Since then, the Government has held discussions with the TUC to examine their ideas to simplify aspects of the law on industrial action ballots and notices. These discussions are ongoing. The Committee notes that in its latest comments, the TUC notes that there has been no progress in this reform. The Committee requests the Government to indicate in its next report progress made in this regard.”

More recently, in a direct request to the Government of the United Kingdom, the Committee of Experts stated:

“In its previous comments, the Committee had taken note of comments made by the Trade Union Congress (TUC) to the effect that the notice requirements for an industrial action to be protected by immunity were unjustifiably burdensome. The Committee requested the Government to continue to provide information on any developments, as well as any relevant statistics or reports on the practical application and effect of these requirements. The Committee notes the Government’s indication that the Court of Appeal decision in RMT v. Serco and in ASLEF v. London Midland (2011) EWCA 226, overturned injunctions which had been obtained by Serco and London Midland Railway against the two main national transport unions, the RMT and ASLEF. In both cases, the injunctions had been obtained on the basis of the unions’ breaches of statutory balloting and notification procedures. This case was the latest in a series of cases assessing the extent of unions’ technical obligations to ensure that a fair balloting process had taken place. In the RMT v. Serco decision, the Court of Appeal issued some key clarification so that in future it is likely to be more difficult for employers to obtain injunctions to prevent strike action as a result of breaches of the balloting and notice requirements. A Court of Appeal decision is binding on all lower courts. Subsequent to this case, in Balfour Beatty v. Unite (2012) EWHC 267 (QB), the Court found against Balfour Beatty, taking account of the Serco case and the need to strike a balance between striving for democratic legitimacy and imposing unrealistic burdens on unions and their officers. The Committee notes the TUC’s observation that, while it greatly welcomes both decisions, it considers that they do not fully address the problems arising under the legislation that it has identified and that the legislation continues to impose intolerable demands on trade unions. The Committee notes these developments with interest and requests the Government to provide its comments on the concerns raised by the TUC.”

The Committee of Experts has taken the following view (see “Giving globalization a human face”, § 125):

“With regard to so-called ‘sympathy’ strikes, the Committee considers that a general prohibition of this form of strike action could lead to abuse, particularly in the context of globalization characterized by increasing interdependence and the internationalization of production, and that workers should be able to take such action, provided that the initial strike they are supporting is itself lawful.”

The Committee on Freedom of Association also considers this form of industrial action to be protected by international labour law (see “Freedom of Association”, Digest of the decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO, Fifth (revised) edition, International Labour Office, 2006):

“534. A general prohibition of sympathy strikes could lead to abuse and workers should be able to take such action provided the initial strike they are supporting is itself lawful.

A ban on strike action not linked to a collective dispute to which the employee or union is a party is contrary to the principles of freedom of association.”

In its consideration of the United Kingdom’s observance of Convention No. 87, the Committee of Experts has repeatedly criticised the fact that secondary strikes are illegal. The initial criticism was included in its 1989 observation concerning the United Kingdom:

“The Committee notes that the common law renders virtually all forms of strikes or other industrial action unlawful as a matter of civil law. This means that workers and unions who engage in such action are liable to be sued for damages by employers (or other parties) who suffer loss as a consequence, and (more importantly in practical terms) may be restrained from committing unlawful acts by means of injunctions (issued on both an interlocutory and a permanent basis). It appears to the Committee that unrestricted access to such remedies would deny workers the right to take strikes or other industrial action in order to protect and to promote their economic and social interests.

It is most important, therefore, that workers and unions should have some measure of protection against civil liability. There has been legislative recognition of this imperative since 1906 in the form of a series of ‘immunities’ (or, more accurately, ‘protections’) against tort action for trade unions and their members and officials. The current version of the ‘immunities’ is to be found in the Trade Union and Labour Relations Act 1974.

The scope of these protections has been narrowed in a number of respects since 1980. The Committee notes, for example, that section 15 of the 1974 Act has been amended so as to limit the right to picket to a worker’s own place of work or, in the case of a trade union official, the place of work of the relevant membership, whilst section 17 of the 1980 Act removes protection from ‘secondary action’ in the sense of action directed against an employer who is not directly a party to a given trade dispute. In addition, the definition of ‘trade dispute’ in section 29 of the 1974 Act has been narrowed so as to encompass only disputes between workers and their own employer, rather than disputes between ‘employers and workers’ or ‘workers and workers’ as was formerly the case.

Taken together, these changes appear to make it virtually impossible for workers and unions lawfully to engage in any form of boycott activity, or ‘sympathetic’ action against parties not directly involved in a given dispute. The Committee has never expressed any decided view on the use of boycotts as an exercise of the right to strike. However, it appears to the Committee that where a boycott relates directly to the social and economic interests of the workers involved in either or both of the original dispute and the secondary action, and where the original dispute and the secondary action are not unlawful in themselves, then that boycott should be regarded as a legitimate exercise of the right to strike. This is clearly consistent with the approach the Committee has adopted in relation to ‘sympathy strikes’:

It would appear that more frequent recourse is being had to this form of action (i.e. sympathy strikes) because of the structure or the concentration of industries or the distribution of work centres in different regions of the world. The Committee considers that a general prohibition of sympathy strikes could lead to abuse and that workers should be able to take such action provided the initial strike they are supporting is itself lawful.”

It appears that the Committee of Experts did not take a definitive position on the ban until its 1995 observation concerning the United Kingdom, when it observed as follows:

“The Committee draws the Government’s attention to paragraph 168 of its 1994 General Survey on Freedom of Association and Collective Bargaining where it indicates that a general prohibition on sympathy strikes could lead to abuse and that workers should be able to take such action, provided the initial strike they are supporting is itself lawful. The lifting of immunity opens such industrial action to be actionable in tort and therefore would constitute a serious impediment to the workers’ right to carry out sympathy strikes.”

It has maintained this view since, stating in its most recent review of the situation (2012 observation, see Report of the Committee of Experts to the International Labour Conference, 102nd Session, 2013, ILC.102/III(1A), pp. 195-96).):

“Immunities in respect of civil liability for strikes and other industrial action (sections 223 and 224 of the TULRA). In its previous comments, the Committee had noted that according to the TUC, due to the decentralized nature of the industrial relations system, it was essential for workers to be able to take action against employers who are easily able to undermine union action by complex corporate structures, transferring work, or hiving off companies. The Committee generally raised the need to protect the right of workers to take industrial action in relation to matters which affect them even though, in certain cases, the direct employer may not be party to the dispute, and to participate in sympathy strikes provided the initial strike they are supporting is itself lawful. The Committee takes note of the Government indication that: (1) its position remains as set out in its report for 200608, that the rationale has not changed and that it therefore has no plans to change the law in this area; and (2) this issue forms part of a matter brought before the ECHR by the National Union of Rail, Maritime and Transport Workers (RMT) and that the Court has yet to consider the case. The Committee recalls the previous concern it raised that the globalization of the economy and the delocalization of work centres may have a severe impact on the right of workers’ organizations to organize their activities in a manner so as to defend effectively their members’ interests should lawful industrial action be too restrictively defined. In these circumstances, the Committee once again requests the Government to review sections 223 and 224 of the TULRA, in full consultation with the social partners, and to provide further information in its next report on the outcome of these consultations.”

The right to strike is protected by Article 6, paragraph 4, of the European Social Charter, which the United Kingdom ratified on 11 July 1962. It provides as follows:

“With a view to ensuring the effective exercise of the right to bargain collectively, the Contracting Parties undertake:

[to] recognise:

the right of workers and employers to collective action in cases of conflicts of interest, including the right to strike, subject to obligations that might arise out of collective agreements previously entered into.”

The European Committee on Social Rights (ECSR) has examined the British rules on strike ballots and deemed them incompatible with the proper exercise of the right to strike. In its most recent assessment of the matter (Conclusions XIX-3, 2010) it stated:

“The Committee considered in its previous conclusions ... that the requirement to give notice to an employer of a ballot on industrial action, in addition to the strike notice that must be issued before taking action, is excessive (even the simplified requirements introduced by the Employment Relations Act (ERA)2004). As there have been no changes to the situation, the Committee reiterates its finding that the situation is not in conformity with Article 6 § 4 of the Charter in this respect.”

Like the ILO Committee of Experts, the ECSR has consistently criticised the situation in the United Kingdom. In its first consideration of the matter (Conclusions XIII-1, 1993) it stated:

“Referring to the report, the Committee noted the Government’s observations concerning the limitations on the right to strike, imposed by the 1990 Employment Act in respect of Great Britain. In particular, it noted that while the Government emphasised the importance of protecting the right of employers to dismiss those engaged in a strike, it also emphasised that the legislation continues to:

(i) allow special protection for peaceful pickets at their own place of work;

(ii) provide statutory immunity to peaceful and lawful pickets;

(iii) provide statutory immunity for lawful trade disputes.

The Committee also noted the recent observations of the ILO Committee of Experts recommending that the legislation be amended to conform with the principle of freedom of association in accordance with ILO Convention No. 87 (Freedom of Association and Protection of the Right to Organise, 1948).

Having regard to this information and having noted that there is no immunity afforded individuals in respect of:

– secondary industrial action other than inducement in the course of peaceful picketing;

– industrial action organised in support of employees dismissed while taking part in unofficial action;

the Committee reiterated its previous negative conclusion for the reasons cited in the twelfth cycle of supervision.” (Conclusions XIII-I, reference period 1990-1991).”

In the ECSR’s most recent pronouncement on the matter (Conclusions XIX-3, 2010) it said:

“In its previous conclusions ... the Committee found that lawful collective action was limited to disputes between workers and their employer, thus preventing a union from taking action against the de facto employer if this was not the immediate employer. It furthermore noted that British courts excluded collective action concerning a future employer and future terms and conditions of employment in the context of a transfer of part of a business (University College London NHS Trust v. UNISON). The Committee therefore considered that the scope for workers to defend their interests through lawful collective action was excessively circumscribed in the United Kingdom. Given that there have been no changes to the situation, the Committee reiterates its finding that the situation is not in conformity with Article 6 § 4 of the Charter in this respect.”

The relevant provisions are the following:

“1. Everyone has the right to freedom of peaceful assembly and to freedom of association at all levels, in particular in political, trade union and civic matters, which implies the right of everyone to form and to join trade unions for the protection of his or her interests.

“Workers and employers, or their respective organisations, have, in accordance with Community law and national laws and practices, the right to negotiate and conclude collective agreements at the appropriate levels and, in cases of conflicts of interest, to take collective action to defend their interests, including strike action.”

Article 28 appears in Title IV of the Charter. As regards the United Kingdom, reference must be made to Protocol (No 30) to the Treaty on the Functioning of the European Union. It provides, in so far as relevant:

In particular, and for the avoidance of doubt, nothing in Title IV of the Charter creates justiciable rights applicable to Poland or the United Kingdom except in so far as Poland or the United Kingdom has provided for such rights in its national law.”

The parties provided some elements of comparative law in relation to secondary strikes. Both referred to a comparative study on the regulation of industrial action in Europe (Strike rules in the EU27 and beyond: A comparative overview, W. Warneck, European Trade Union Institute for Research, Education and Health and Safety (ETUI-REHS), 2007). According to this source, secondary action is protected or permitted, subject to varying restrictions and conditions, in the great majority of the member States of the European Union. The States that, like the United Kingdom, do not permit secondary action were identified as Austria, Luxembourg and the Netherlands.

In their initial submissions, the Government sought to draw support for the situation in the United Kingdom by reference to the situation in the following States: Spain, the Netherlands, Italy, Austria, Norway, Denmark and Germany. They contended that these illustrated a broad tendency in Europe to subject secondary action to much more restrictive conditions than primary industrial action. In reply to this the applicant union provided to the Court statements from labour-law experts in a number of European countries contradicting the Government’s remarks. The applicant union concluded that the United Kingdom is the most restrictive among the Contracting Parties to the Convention in this respect. The Government concluded that the material demonstrated that, notwithstanding the great variety of industrial-relations systems and traditions in Europe, most States distinguished between primary and secondary action, with greater restriction on the latter. The broad right claimed by the applicant union was not supported by any real European consensus.

The Court notes that comparative information is available from the monitoring mechanism of the European Social Charter. As indicated above, this body has repeatedly criticised the situation in the United Kingdom, which appears to be the only State subject to criticism on this specific ground. The ECSR has also commented in recent years on the lawfulness of secondary action (sometimes using the term “sympathy” or “solidarity” action) in the following States: Bulgaria, Croatia, the Czech Republic, Denmark, Estonia, Finland, Germany, Malta, Norway, Portugal, Romania, the Slovak Republic, Spain and Sweden. With reference to the three other States identified in the Warneck study as not permitting secondary action, the Court notes that the ECSR has not criticised the situation in the Netherlands on this ground. Nor has it made any comment at all in relation to the situation in Austria or Luxembourg, neither State having accepted Article 6, paragraph 4, of the Social Charter.

Some further comparative information is available from the publications and legal databases of the ILO. For example, the Committee of Experts referred to the removal from the Turkish Constitution of the prohibition on solidarity strikes (“Giving globalization a human face”, § 125). It has also referred, in its review of State implementation of Convention No. 87, to the lawfulness of sympathy strikes in Albania, Georgia and Latvia. The Committee on Freedom of Association has referred to solidarity strike action in Hungary (complaint no. 2775), and noted that Russian law does not expressly provide for, or for that matter prohibit, such action (complaint no. 2251).

Additionally, the Court notes that in Swiss law strikes are permitted if they “relate to employment relations” (Article 28 § 3 of the Constitution). According to one constitutional commentary, a strike must actually be about working conditions, and not pursue corporatist or political objectives outside of the enterprise or branch (Droit constitutionnel suisse, vol. II, Auer, Malinverni and Hottelier, p. 723).


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)

The applicant was born in 1952 and lives in Šaľa.

On 31 May 1994 the applicant claimed a sum of money from a bank.

On 16 September 2005 the applicant lodged an application before the Court challenging the length of these proceedings. On 22 May 2007 the Court decided to strike that case (application no. 34161/05) out of its list of cases on the ground that a friendly settlement had been reached between the parties.

In the proceedings complained of the Supreme Court’s decision of 30 April 2007 to dismiss the applicant’s appeal, examined as an appeal on points of law, became final on 11 June 2007.

On 27 January 2010 the above decision was quashed by the Constitutional Court and the case was remitted to the Supreme Court for reexamination.

On 23 September 2010 the Constitutional Court dismissed the applicant’s complaint challenging the length of the proceedings.

On 7 June 2011 the Supreme Court dismissed the applicant’s appeal against the first-instance judgment. Upon the applicant’s appeal on points of law the cassation chamber of the Supreme Court quashed that decision on 25 April 2013.

On 19 June 2014 the Supreme Court again dismissed the applicant’s appeal against the first-instance judgment. The applicant indicated that he intended to lodge an appeal on points of law after the service of the Supreme Court’s decision.


Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty)

Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova

The applicant was born in 1979 and lives in Groznyy in the Chechen Republic.

On 23 June 2012 the applicant was arrested in connection with a drug-related offence and placed in custody.

On 14 August 2012 the Oktyabrskiy District Court of Groznyy found the applicant guilty and sentenced him to one year’s imprisonment.

On 14 November 2012 the Supreme Court of the Chechen Republic quashed the conviction and ordered a retrial.

On 30 May 2013 the Oktyabrskiy District Court again convicted the applicant and sentenced him to one year’s imprisonment. The court stated that the “preventive measure [should] remain unchanged until the conviction [had become] final”.

On 24 June 2013 counsel for the applicant asked the director of the remand prison to release the applicant since he had already served the one-year sentence. On the same day a judge of the District Court faxed a letter to the director, informing him that the applicant should not be released until the Supreme Court had examined the matter on appeal since the District Court ordered the preventive measure to remain unchanged.

On 3 July 2013 the Supreme Court upheld the conviction and the applicant was released.


George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney

The applicant, Mr Kazimierz Kalisz, is a Polish national, who was born in 1952 and lives in Straszęcin. He was represented before the Court by Ms M. Gąsiorowska, a lawyer practising in Warsaw.

The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska, of the Ministry of Foreign Affairs.

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

On 5 October 2006 the applicant’s wife, J.K., lodged a request with the court to have the applicant deprived of his legal capacity.

In the course of the proceedings, the applicant was examined by two psychiatrists and a psychologist. The medical opinion issued by one of the psychiatrists on 22 November 2006 reads as follows:

“...the applicant suffers from severe mental disorders (nasilone zaburzenia psychiczne)... progressive, gradual changes to the central nervous system have resulted in a significant deterioration in his insight into his own situation and social relations. They constitute a basis for impulsive behaviour and aggression towards others.”

The psychiatrist concluded that there was a need to provide the applicant with help with everyday matters and therefore a partial deprivation of his legal capacity and the appointment of a guardian would be recommended. The expert saw no grounds to fully deprive him of his legal capacity.

On 20 December 2006 the Rzeszów Regional Court granted J.K.’s request and decided to fully deprive the applicant of his legal capacity on the grounds of mental illness.

After the expiry of the time-limit for appeal, the applicant appointed a lawyer, who on 22 January 2007, lodged an appeal against the decision of 20 December 2006 together with a request for leave to appeal out of time.

On 20 February 2007 the request was rejected because the applicant, being deprived of his legal capacity, could not effectively appoint a lawyer. The request and appeal had thus been lodged by someone who did not have the proper authorisation to act on the applicant’s behalf.

On 22 March 2007 the Strzyżów District Court appointed J.K. as the applicant’s guardian.

On 4 December 2007 an investigation into the alleged mental and physical mistreatment of the applicant’s wife and son, A.K., was opened.

On 28 January 2008, at the request of the prosecutor, the applicant was appointed a lawyer, B.L.

In the course of the criminal proceedings, the applicant was examined by two psychiatrists and a psychologist, who on 4 February 2008 issued their opinion. The relevant parts read as follows:

“From the medical documentation available, it appears that the applicant has not continued ambulatory treatment, does not take [his] medication, abuses alcohol and displays aggressive behaviour towards his family...

...the applicant is mentally ill. He was also mentally ill at the time of commission of the prohibited acts in question; at that time, he was incapable of recognising the significance of his behaviour and controlling his conduct...he absolutely requires treatment within the confines of a psychiatric unit...because there is a high probability that he might commit another similar prohibited act.”

On 23 June 2008 a hearing before the Strzyżów District Court was held, at which the expert witnesses confirmed the conclusions reached in their opinion of 4 February 2008.

On 23 June 2008 the Strzyżów District Court, relying on Article 94 of the Criminal Code, discontinued the proceedings against the applicant. It found that at the time of commission of the prohibited acts in question, he could not recognise the significance of his behaviour because of his mental illness. It also found that there was a high probability that he would commit further similar prohibited acts because he had refused to undergo systematic treatment, did not take his medication, abused alcohol and was completely uncritical as regards the prohibited acts he had committed and his state of health. The court also decided to impose on the applicant a preventive measure, namely placement in a closed psychiatric facility where he would undergo the necessary psychiatric treatment.

The applicant’s lawyer appealed against this decision.

On 30 July 2008 the Rzeszów Regional Court upheld the challenged decision, agreeing with the reasoning of the District Court. It also held that since the applicant had been completely uncritical as regards the prohibited acts committed and had refused treatment, there was a high probability that he would commit similar prohibited acts in future.

On 13 August 2008 the Psychiatric Commission on Preventive Measures at the Ministry of Health decided to admit the applicant to a psychiatric hospital in J. The applicant requested to have this decision varied as he preferred to be placed in a hospital in D.

On 21 October 2008 the Strzyżów District Court granted the applicant’s request.

On 20 November 2008 the applicant was admitted to the psychiatric hospital in D. He has been detained there ever since, having had his detention extended by the Strzyżów District Court on a regular six-monthly basis on the following dates: 7 April, 23 June and 15 December 2009 (psychiatric opinions of 9 March, 3 June and 20 November 2009 respectively), 20 May and 28 October 2010 (psychiatric opinions of 27 April and 27 September 2010), 12 April and 22 September 2011 (psychiatric opinions of 9 March and 23 August 2011), 20 March and 18 September 2012 (psychiatric opinions of 20 February and 8 August 2012), 7 March, 26 July and 27 September 2013 (for the two first decisions, a psychiatric opinion of 31 January and for the latest, an opinion of 18 July 2013). On 13 December 2013, following an appeal by the applicant’s lawyer, the decision of 27 September 2013 was upheld by the Rzeszów’s detention in a psychiatric hospital was given on 30 January 2014 on the basis of a psychiatric opinion dated 8 January 2014.

Each time the court considered extending the preventive measure, it appointed a legal aid lawyer for the applicant. Both the applicant and his lawyer were informed of every hearing with one exception, a hearing which took place on 7 March 2013. The applicant’s lawyer appealed. He contested the court’s findings made in the decision of 7 March 2013 that there was a high probability that the applicant would commit a further prohibited act and that his state of health required his continued confinement in a psychiatric institution. On 19 June 2013 the Rzeszów Regional Court quashed the challenged decision however on other grounds than those which had been relied on by the applicant’s lawyer. It referred to a judgment of the Supreme Court of 27 February 2013, according to which a lawyer whose participation in the execution proceedings is mandatory must also be present at any hearings concerning the extension of a preventive measure imposed on his client.

The court’s decisions extending the applicant’s detention in the psychiatric hospital were reasoned in a similar way. The court stressed the fact that the experts had found that the applicant, due to the state of his mental health, required further confinement in a unit with reinforced security measures, because of the high probability that he might commit a similar prohibited act.

On 11 April 2008 the applicant requested the Rzeszów Regional Court to partially restore his legal capacity.

On 14 January 2009 it dismissed the request on the grounds that the applicant’s health had not improved to an extent that would justify such a decision being taken.

The applicant appealed.

On 14 May 2009 the Rzeszów Court of Appeal dismissed the appeal. It found, among other things, that the Regional Court had based its decision on complete psychiatric opinions, and that it had been unnecessary to appoint other medical experts to determine the applicant’s state of health.

On 11 August 2009 the applicant’s lawyer lodged a cassation appeal with the Supreme Court.

On 13 April 2010 the Supreme Court refused to examine the appeal.

On 12 March 2012 the applicant’s sister, A.G., requested the Strzyżów District Court to dismiss the applicant’s wife as guardian. She submitted that there had been a situation of extreme conflict between the applicant and his wife, who she alleged had had mental health problems in the past and had undergone psychiatric treatment.

On 26 June 2012 the Strzyżów District Court dismissed the request, finding that the applicant’s wife had properly fulfilled her obligations. As regards her alleged mental health problems, the court found that she had undergone some treatment for depression; however, this did not prevent her from acting as her husband’s guardian.

The applicant’s sister appealed against the first-instance decision and, since her appeal was lodged after the expiry of the time-limit, she requested the court for leave to appeal out of time. She submitted that the court’s correspondence had not been served on her because it had been stolen from her postbox.

On 10 May 2013 the Rzeszów Regional Court dismissed the request for leave to appeal out of time. It found that A.G.’s statements as regards the alleged theft of correspondence from her postbox had not been credible. The appeal was dismissed the same day.

The applicant’s sister regularly visited him in hospital. According to the director of the psychiatric unit, after each visit, the applicant would behave aggressively and refuse to take his medication.

On 31 August 2009 the director took the decision to ban the applicant’s sister from visiting him. She relied on Article 204c of the Code of Execution of Criminal Sentences and reasoned her decision by “repetitive incidents of internal rule breaking by A.G. and a risk of the applicant behaving dangerously”.

On the same day the applicant was served with a copy of that decision, which included a notice of his right to appeal to the director of the psychiatric unit and, subsequently, to the Penitentiary Court. The applicant failed to appeal.

Article 93 of the Criminal Code reads as follows:

“The court may impose a preventive measure provided for in this chapter which involves committal to a closed medical institution only if necessary to prevent the repeated commission of a prohibited act by a perpetrator suffering from mental illness...mental impairment, or addiction to alcohol or other narcotic drugs. Before imposing such a measure, the court shall hear evidence from psychiatrists and a psychologist...”

Article 94 reads as follows:

“ 1. If a perpetrator has committed a prohibited act causing significant harm to the community, in a state of insanity as specified in Article 31 § 1, and there is a high probability that he will commit such an act again, the court shall commit him to a suitable psychiatric institution.

The duration of the stay in the institution shall not be fixed in advance; the court shall release the perpetrator from the institution if his stay there is no longer deemed necessary.

The court may reorder the committal of a perpetrator specified in paragraph 1 to a suitable psychiatric institution if it is advisable in the light of the circumstances specified in paragraph 1 or in Article 93; such an order may not be issued more than 5 years after release from the institution.”

Article 203 of the Code of Execution of Criminal Sentences reads, in so far as relevant, as follows:

“ 1. The director of a closed institution in which a preventive measure is being executed shall send the court, no less than every six months, an opinion on the state of health of the perpetrator placed in the institution and the progress of his or her treatment or therapy. The opinion shall be sent immediately if, due to a change in the perpetrator’s state of health, the director finds that his or her further detention in the institution is unnecessary.

The court may request, at any time, an opinion on the state of health of the perpetrator placed in an institution referred to in paragraph 1, the treatment or therapy administered, and the results thereof.”

Article 204 reads as follows:

“ 1. The court shall, no less than every six months, and in the event of receiving an opinion that further detention of the perpetrator in a closed medical institution in which a preventive measure is being executed is unnecessary, immediately make a decision as regards the further execution of that measure. If necessary, the court shall refer to the opinion of other medical experts.

The decision as regards the further execution of a preventive measure may be appealed against.”

Article 204 c reads as follows:

“Personal contact of a perpetrator detained in an institution referred to in [paragraphs 2 and 3 of] Article 200 § 2 and Article 200 § 3 [reinforced and maximum security psychiatric hospitals and drug rehabilitation institutions] with visitors may only take place with the approval of the director of the institution. Approval may be refused, particularly if such contact could cause an increased risk of dangerous behaviour.”


Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra

The applicant, Mr Mileta Petrović, is a Serbian national, who was born in 1955 and lives in Čačak.

The Serbian Government (“the Government”) were represented by their Agent, Mr S. Carić.

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

On 15 March 2003 B.D. demolished a part of the ventilation system of the applicant’s restaurant.

On 17 March 2003 the applicant filed a civil trespass claim (tužba zbog smetanja poseda) against B.D.

On 14 April 2004 the Municipal Court (Opštinski sud) in Čačak ruled in favour of the applicant, ordering B.D. to reconstruct the ventilation system in question, in accordance with the original project design and under the supervision of mechanical and construction engineering experts, as well as to pay 109,800 Serbian dinars (“RSD”) (approximately 1,570 euros (“EUR”) at the relevant time) on account of the costs incurred.

By 23 July 2004 this decision became both final and enforceable.

On 8 September 2004, following the applicant’s request of 30 July 2004, the Municipal Court (hereinafter “the enforcement court”) issued an enforcement order. On 26 October 2004 the enforcement order was upheld on the appeal.

On 10 November 2004 the applicant requested the enforcement court to order B.D. to advance the costs of the construction works. By 30 June 2005 the enforcement court held a hearing, appointed two experts and requested their opinion on two different occasions, assessed the costs, collected offers, selected building contractors and finally, considered at two instances and enforced the decision ordering B.D. to advance the costs and authorising the applicant to undertake the necessary construction works thereof. The applicant objected to the experts’ reports and refused to collect the advance deposited with the enforcement court.

Between 20 September 2005 and 17 May 2006 the enforcement court ordered the applicant to commence with the construction works, appointed new experts and obtained two of their reports as to the modalities of the enforcement, held three hearings and examined witnesses in connection with the original construction works on the ventilation system, and twice ordered the applicant to have his building contractor provide an estimate of the building costs. The applicant objected to the experts’ reports, lodged a request for the protection of legality against the court order and refused to abide by it.

On 2 June 2006 the enforcement court terminated the enforcement proceedings. On the applicant’s appeal, this decision was quashed on 28 June 2006 and the enforcement court was instructed to prevent the parties’ abuse of procedural rights by undertaking the required actions in their stead.

In the period from 30 June 2006 to 29 January 2008 the enforcement court proceeded with the enforcement and scheduled ten hearings, two of which were adjourned due to the applicant’s and B.D.’s ill-health, one because of a mistake in summons, the other one for unspecified reasons and the last two as a result of the applicant’s request for a relinquishment to another court and for the failure of one of the experts to appear, who was therefore fined. In addition, the enforcement court appointed new experts, requested expert opinions on three different occasions, considered the applicant’s independent expert report and consulted a case-file from the administrative body which had issued the construction and use permits for the applicant’s restaurant. The applicant’s building contractor failed to provide project documentation specifically requested by the court three times.

In the meantime, the applicant lodged numerous complaints about the length of the enforcement proceedings with the President of the District Court (Okružni sud) in Čačak and the Ministry of Justice and filed several requests for the reclusion of, and criminal complaints against the judges and experts.

On 29 February 2008 the enforcement court terminated the enforcement proceedings. The court found in particular that, since the demolished ventilation system had not been constructed in line with the original project design, the supervision of its reconstruction was impossible and that, therefore, the Municipal Court decision of 14 April 2004 could not be enforced. On 30 June 2008 this decision was upheld on the appeal.

On 6 June 2005 the applicant instituted civil proceedings against B.D. and the respondent State for compensation for damage due to the excessive length of the enforcement proceedings.

On 21 April 2009 the Municipal Court (Prvi opštinski sud) in Belgrade rejected the applicant’s claim for compensation for lost earnings and declared the applicant’s claim for compensation for non-pecuniary damage withdrawn.

On 25 August 2011 the Appeals Court (Apelacioni sud) quashed the judgment of 21 April 2009 in the part rejecting the applicant’s claim against B.D. and remitted that part of the case to the first-instance court for reconsideration. At the same time the Appeals Court upheld the remainder of the judgment of 21 April 2009.

It would appear that the proceedings are still pending.

On 5 August 2008 the applicant filed a constitutional appeal complaining about the non-enforcement of the Municipal Court decision of 14 April 2004.

On 20 April 2011 the Constitutional Court (Ustavni sud) of the Republic of Serbia rejected the applicant’s constitutional appeal.