Ministers’ Deputies
Agenda

CM/Del/OJ/DH(2009)1059 Section 6.1 PUBLIC 19 June 2009

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1059th meeting (DH), 2-4 and 5 (morning) June 2009

- Annotated Agenda1
- Decisions

Section 6.1

Public information version

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SECTION 6 - CASES PRESENTED WITH A VIEW TO THE PREPARATION OF A DRAFT FINAL RESOLUTION

Action

For each case or group of cases, the Deputies adopted the decision presented in a ruled box.

Section 6.1
Cases in which the new information available since the last examination appears to allow the preparation of a draft final resolution

- 2 cases against Austria

12643/02 Moser, judgment of 21/09/2006, final on 21/12/20062

513/05 Schmidt, judgment of 17/07/2008, final on 17/10/2008
The case concerns the excessive length of disciplinary proceedings against the applicant, a lawyer, before disciplinary authorities and courts of the Vienna Bar Association and the Constitutional Court (violation of Article 6§1).
The period to be taken into consideration by the European Court began on 26/06/1996 and ended on 23/07/2004 (8 years and 1 month for 3 levels of jurisdiction, but was pending for almost 3 years before the Constitutional Court).
Individual measures: The proceedings are closed. In addition, the European Court awarded just satisfaction in respect of non-pecuniary damage sustained by the applicant.
General measures:
1) Length of proceedings before disciplinary authorities and courts: The case presents similarities to that of W.R. (see ResDH(2000)141, adopted on 18/12/2000), closed after the dissemination of the European Court's judgment to the competent authorities.
2) Length of proceedings before the Constitutional Court: The Constitutional Court’s 2007 Activity Report (published on 09/04/2008, available online at http://www.vfgh.gv.at/cms/vfgh-site/attachments/8/0/9/CH0011/CMS1207730706100/taetigkeitsbericht_2007.pdf) provided statistics showing that the average length of proceedings between 1998 and 2007 was less than 9 months. The duration of the proceedings in the present case seems to constitute an isolated incident resulting from the particular circumstances of the case. Given the direct effect of the Convention in Austria, publication and dissemination of the judgment should be sufficient to raise the authorities’ awareness of the Convention’s requirements.
3) Publication and dissemination: The European Court’s judgment has been published in German in the Newsletter of the Austrian Institute for Human Rights (NL 2008, p. 219, NL 08/4/11, available online at http://www.menschenrechte.ac.at/docs/08_4/08_4_11). On 4/08/2008 it was sent out to the Constitutional Court, to the Vienna Bar Association, the Federation of the Austrian Bar Association, and the Ministry of Justice.

The Deputies decided to resume consideration of this item at their 1065th meeting (15-16 September 2009) (DH), in the light of a draft final resolution to be prepared by the Secretariat.

- 2 cases against Croatia

32457/05 Gashi, judgment of 13/12/2007, final on 13/03/2008 and of 09/10/2008, final on 09/01/2009
The case concerns a violation of the applicant’s right to the peaceful enjoyment of his possessions in that he was deprived of property which he had bought from the municipality of Pula in 1996 under the Protected Tenancies Act (violation of Article 1 of Protocol No. 1). Following an action brought by the State Attorney’s Office, the domestic courts annulled the contract of sale in 2003, considering that the property, a flat allocated to the applicant by his employer in 1988, did not fall within the scope of the Act.
The European Court noted that the annulment of the applicant’s property title was in accordance with domestic law but found that the interference failed to strike a fair balance between the public interest and the applicant’s rights. The purchase was based on the laws applicable to all holders of protected tenancies of publicly-owned flats, and not at all reserved for a privileged category of citizens. Further, the flat in question was ab initio social property and was given to the applicant for his use by the glass factory where he had worked. The contract was annulled, inter alia, on the ground that the glass factory had not been entitled to dispose of the flat but in fact the flat was sold by the Pula Municipality, which was entitled to do so, under the supervision of the State Attorney’s Office. Thus the Court considered that the annulment of the applicant’s property title at the instigation of the same State Attorney’s Office as had approved the contract assigning him title, contravened the principle of legal certainty. Finally, the applicant obtained no compensation for the loss of the property.
Individual measures: The European Court awarded the applicant just satisfaction for pecuniary damage corresponding to value of the flat in question.
General measures: It seems that this was an isolated violation resulting from the particular circumstances of the case. In view of the direct effect of the European Convention in Croatia, publication of the judgment of the European Court and its dissemination to the relevant courts should be sufficient to avoid similar violations. In this context it should be noted that the judgment of the European Court has been translated into Croat and sent out to the Constitutional Court, the Supreme Court and to the courts and authorities involved. It is also available on the Internet site of the Ministry of Justice (www.pravosudje.hr <http://www.pravosudje.hr>) and will be published in a periodic on the case-law of the European Court of Human Rights.

The Deputies decided to resume consideration of this item at their 1065th meeting (15-16 September 2009) (DH), in the light of a draft final resolution to be prepared by the Secretariat.

34499/06 Perić, judgment of 27/03/2008, final on 27/06/2008
The case concerns the unfairness of civil proceedings brought by the applicant. In 2003 the trial court refused to hear evidence from any of the witnesses called by the applicant on the grounds that the facts had been sufficiently established, even though it subsequently admitted testimony from defence witnesses (violation of Article 6§1).
Individual measures: Section 428(a) of the Civil Procedure Act enables an applicant in respect of whom the European Court of Human Rights has found a violation of the Convention or its Protocols to request, within 30 days of the Court's judgment becoming final, the reopening of the domestic proceedings in question. In the new proceedings the domestic courts are obliged to follow the reasons given in the Court's judgment. In addition, the European Court awarded the applicant just satisfaction in respect if non-pecuniary damage.
General measures: It does not appear that the violation in this case has a structural character.
In view of the direct effect of the European Convention in Croatia, publication of the judgment of the European Court and its dissemination to the relevant courts should be sufficient to avoid similar violations. In this context it should be noted that the judgment of the European Court has been translated into Croat and sent out to the Constitutional Court, the Supreme Court and to the courts involved. It is also available on the Internet site of the Ministry of Justice (www.pravosudje.hr <http://www.pravosudje.hr>) and will be published in a periodic on the case-law of the European Court of Human Rights.

The Deputies decided to resume consideration of this item at their 1065th meeting (15-16 September 2009) (DH), in the light of a draft final resolution to be prepared by the Secretariat.

- 1 case against Cyprus

28025/03 Kolona, judgment of 27/09/2007, final on 27/12/2007 and of 02/10/2008 - Friendly settlement
This case concerns an unjustified interference in the applicant’s right to the peaceful enjoyment of her possessions due to the unlawful demolition of her home in 2000 (violation of Article 1of Protocol No. 1).
The European Court observed that the authorities demolished the applicant’s house on the basis of a requisition order adopted simultaneously with an order of compulsory acquisition in the public interest. However, at the material time it was still open to the applicant to appeal against the compulsory acquisition order and, what is more, at the moment the house was demolished, the compulsory acquisition order had been revoked because the property was no longer required in the public interest. The Court considered the demolition based on the temporary requisition order to be unlawful.
In addition it noted that the applicant had not been offered or granted any compensation for the demolition of her house despite the authorities’ duty both under the Constitution and the applicable legislation.
For the same reasons, the case also concerns the violation of the applicant’s right to the respect for her home (violation of Article 8).
Individual measures: In its Article 41 judgment, the European Court took note of an agreement reached between the parties. In this respect, the government undertook to compensate the pecuniary and non-pecuniary damages sustained by the applicant.
The applicant died on 23/12/04. The application was pursued by her husband, who is also the administrator of her estate.

General measures:
1) Violations of Article 1 of Protocol No. 1 and Article 8: The Court found violations of both articles as the demolition of the applicant’s home was arbitrary and therefore did not meet the requirement of lawfulness. The arbitrary nature of the demolition was based on three main factors:
- at the time of the demolition of her property, the applicant’s appeal against the compulsory acquisition order was still outstanding; there was no compulsory acquisition order in force, despite the appeal (it had been revoked); the applicant had not been notified of the revocation of the compulsory acquisition order and a new compulsory acquisition order was not issued until one year and 10 months after the first compulsory acquisition order had been revoked (§73 of the judgment);
- the applicant was not notified of the intended demolition of her property (§75);
- the applicant was not offered or granted any compensation for the demolition of her house (§76).
Article 23(3) and 23(8)(d) of the Cypriot Constitution and Section 11§37 of the Requisition Law provide for the offer and prompt payment of compensation.
2) Publication and dissemination: On 10/10/2008 the Cypriot authorities confirmed that the European Court’s judgment was published on the Human Rights Section of the Legal Service web-site.
The Cypriot authorities consider that this case is an isolated one resulting from the inappropriate application of the relevant legal provisions. The judgment has therefore been sent to the authorities concerned, including the Land Registry, the Department of Finance, the Ministry of the Interior, the Limassol Land Registry, the Department for Transport and the Department for Public Works. The judgment was sent under cover or a detailed letter explaining the reasons for the findings of the European Court. Particular emphasis was placed on the question of payment of compensation. The letter and judgment were again circulated along with a copy of the Article 41 judgment to the authorities concerned and the Supreme Court, the Presidents of the Cyprus Bar Association and of the Legal Affairs and Human Rights Parliamentary Committees.

The Deputies decided to resume consideration of this item at their 1065th meeting (15-16 September 2009) (DH), in the light of a draft final resolution, to be drafted by the Secretariat.

- 10 cases against the Czech Republic

*55179/00 Glaser, judgment of 14/02/2008, final on 14/05/2008
This case concerns the violation of the applicant’s right of access to a court due to the Constitutional Court’s restrictive interpretation of its admissibility rules. In 1999, the applicant lodged a constitutional appeal alleging the unfairness of proceedings which he had brought against the Jewish Museum in Prague to recover a collection of Arab works of art, deposited with the museum in 1948. On 03/11/1999 the Constitutional Court declared his appeal inadmissible in view of the fact that he had failed to exhaust statutory remedies by appealing on points of law (violation of Article 6§1).
The European Court found that the Czech Constitutional Court had interpreted the procedural rule at issue in such a restrictive manner that the applicant had been deprived of his right of access to a court.
Individual measures: The Court held that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant. It dismissed his claim for pecuniary damage, corresponding to the alleged value of the art collection, for lack of a causal link between the violation of Article 6 found and the pecuniary damage claimed by the applicant. In this respect, the European Court found no violation of Article 1 of Protocol No. 1, considering that the applicant had failed to demonstrate with sufficient certainty his original title to the items he sought to recover.
The Czech authorities underlined the fact that the applicant’s case had been examined on the merits at two levels of national jurisdictions, that the European Court had rejected his complaint under Article 1 of Protocol No. 1 and that had made no claim in respect of individual measures.
In this case, any suggestion of reopening the proceedings before the Czech Constitutional Court would seem to run up against the principle of legal certainty to which the other party to the civil proceedings is entitled. Furthermore, in the light of the Czech authorities' arguments and those of the Court concerning the claim of just satisfaction, it would not seem that the violation affected the outcome of the proceedings in question. This being the case, it is unnecessary to pursue the question of individual measures.
General measures: Following three earlier similar cases (see Běleš and others group, Final Resolution CM/ResDH (2007)115, adopted on 31/10/2007; Zvolský and Zvolská, Final Resolution CM/ResDH(2007)30, adopted on 20/04/2007; and Vodárenská akciová společnost, A.S., Final Resolution CM/ResDH(2008)27, adopted on 27/03/2008), the Czech authorities adopted a number of measures to prevent new violations:

(a) The plenary of the Constitutional Court changed its practice in 2003 (communication published in the Official Journal No. 32/2003 of 03/02/2003) by allowing that constitutional appeal against the decisions of lower jurisdictions be lodged following the decision on an extraordinary appeal (see §21 of the judgment of the European Court in the case of Vodárenská akciová společnost, A.S.).
(b) Subsequently Parliament adopted Law No. 83/2004 (which entered into force on 01/04/2004) which amended Law No. 182/1993 on the Constitutional Court. According to the amended law (Article 75§1), the extraordinary appeal of which the admissibility depends only on the discretionary assessment of the competent authority does not necessarily have to be exhausted before addressing the Constitutional Court. Moreover, if the extraordinary appeal is declared inadmissible by the competent authority only on the basis of its discretionary assessment, the constitutional appeal can be lodged within 60 days starting from the notification of the decision relating to the admissibility of that extraordinary appeal (Article 72§4).
The violation in the present case occurred before these modifications.
The European Court’s judgment was translated and published on the website of the Ministry of Justice (www.justice.cz) and sent out to the authorities concerned.

The Deputies decided to resume consideration of this item at their 1065th meeting (15-16 September 2009) (DH), in the light of a draft final resolution, to be drafted by the Secretariat.

      - Cases concerning the right of access to the Constitutional Court due to its excessively formalistic interpretation of the admissibility rules

10254/03 Drahorád and Drahorádová, judgment of 20/03/2008, final on 20/06/2008
17999/03 Mourek, judgment of 03/04/2008, final on 03/07/2008
31806/02 Hoření, judgment of 06/03/2008, final on 29/09/2008
18806/02 Ješina, judgment of 26/07/2007, final on 10/12/2007
The cases concern the violation of the applicants’ right of access to a court due to the dismissal of the applicants’ complaint by the Constitutional Court as being out of time or for non-exhaustion of available remedies (violations of Article 6§1).
In the Drahorád and Drahorádová case, the applicants lodged a constitutional appeal alleging the unfairness of civil proceedings concerning the annulment of their purchase contract; they complained in particular about their obligation to reimburse the costs of the proceedings to the winning party. On 19/09/2002 the Constitutional Court dismissed their appeal as being out of time with regard to complaints related to the lower courts’ decisions, considering that the time-limit for lodging these complaints could not run from the Supreme Court’s decision declaring the applicants’ appeal on points of law inadmissible.
In the Mourek case, the applicant lodged a constitutional appeal alleging the unfairness of administrative proceedings concerning invalidity pension. On 30/01/2003 the Constitutional Court dismissed his appeal as being out of time with regard to complaints related to the lower courts’ decisions, considering that the time-limit for lodging these complaints could not run from the Supreme Court’s decision declaring the applicant’s appeal on points of law inadmissible.
In the Hoření case the applicant lodged a constitutional appeal alleging the lack of judicial protection in civil proceedings concerning his action for compensation and restitution against a former associate. On 19/02/2002 the Constitutional Court dismissed his appeal as being out of time with regard to complaints related to the lower courts’ decisions, considering that the time-limit for lodging these complaints could not run from the Supreme Court’s decision declaring the applicant’s appeal on points of law inadmissible.
In the Ješina case, the applicant lodged a constitutional appeal alleging the unfairness of civil proceedings for damages which had been brought against him. On 14/03/2001, the Constitutional Court declared his appeal inadmissible for failure to exhaust statutory remedies by appealing on points of law.
The European Court, referring to its previous findings in the cases of Běleš and others (No. 47273/99, ECHR 2002-IX) and Zvolský and Zvolská (No. 46129/99, ECHR 2002-IX), found that the Czech Constitutional Court had interpreted a procedural rule in such a restrictive manner that the applicants had been deprived of their right of access to a court.
Individual measures: In all four cases, the European Court held that the violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicants.
In the Drahorád and Drahorádová case, the European Court dismissed the unfairness and length complaints of the applicants as manifestly ill-founded. The applicants nevertheless requested 711 000 CZK (27 508 EUR) for pecuniary damage, which allegedly amounted to the purchasing and reconstruction costs of new housing and to legal costs which they had to reimburse to the claimants.

They also requested 200 000 CZK (7 738 EUR) in respect of non-pecuniary damage allegedly caused by the length of proceedings and by the non-observance of the restitution legislation by the domestic courts. The European Court did not find any causal link between the non-pecuniary and pecuniary damage as claimed by the applicants and the violation of Article 6 found, and it concluded that it could not further speculate on what would have been the issue of the proceedings, should the Constitutional Court have accepted and examined the constitutional appeal lodged by the applicants.
In the Mourek case, the remaining complaints of the applicant (concerning length of proceedings, equality and discrimination) were dismissed by the European Court for non-exhaustion of domestic remedies or as manifestly ill-founded. The applicant submitted no request for pecuniary damage; his request for non-pecuniary damage related to the length of proceedings.
In the Hoření case, all the remaining complaints lodged by the applicant were declared inadmissible by the European Court. The applicant requested compensation both for pecuniary and non-pecuniary damage. The European Court did not find any causal link between the damages as claimed by the applicant and the violation of Article 6 found, and it concluded that it could not further speculate on what would have been the issue of the proceedings, should the Constitutional Court have accepted and examined the constitutional appeal lodged by the applicant.
In the Ješina case, the remaining complaints were declared manifestly ill-founded by the European Court. The European Court also found no causal link between the alleged pecuniary damage claimed by the applicant and the violation of Article 6 found, and it concluded that it could not further speculate on what would have been the outcome of the proceedings had the Constitutional Court accepted and examined the constitutional complaint lodged by the applicant.
The Czech authorities underlined that these cases had been examined on the merits at least at first and second instance, that the same alleged violations of the Convention which the applicants intended to raise before the Constitutional Court had been declared inadmissible by the European Court, and that the applicants had made no claim in respect of individual measures.
In these cases, any suggestion of reopening the proceedings before the Czech Constitutional Court would seem to run up against the principle of legal certainty to which the other party to the civil proceedings is entitled. Furthermore, in the light of the Czech authorities' arguments and those of the Court concerning the claims of just satisfaction, it would not seem that the violation affected the outcome of the proceedings in question. This being the case, it is unnecessary to pursue the question of individual measures.
General measures: Following earlier similar cases (see Běleš and others group, Final Resolution CM/ResDH (2007)115, adopted on 31/10/2007; Zvolský and Zvolská, Final Resolution CM/ResDH(2007)30, adopted on 20/04/2007; and Vodárenská akciová společnost, A.S., Final Resolution CM/ResDH(2008)27, adopted on 27/03/2008), the Czech authorities adopted a number of measures to prevent new violations:
(a) The plenary of the Constitutional Court changed its practice in 2003 (communication published in the Official Journal No. 32/2003 of 03/02/2003) by allowing constitutional appeals against decisions of lower jurisdictions to be lodged following the decision on an extraordinary appeal (see §21 of the judgment of the European Court in the case of Vodárenská akciová společnost, A.S.).
(b) Subsequently Parliament adopted Law No. 83/2004 (which entered into force on 01/04/2004) which amended Law No. 182/1993 on the Constitutional Court. According to the amended law (Article 75§1), the extraordinary appeal, admissibility of which depends only on the discretionary assessment of the competent authority, does not necessarily have to be exhausted before addressing the Constitutional Court. Moreover, if the extraordinary appeal is declared inadmissible by the competent authority only on the basis of its discretionary assessment, the constitutional appeal may be lodged within 60 days counting from the notification of the decision relating to the admissibility of that extraordinary appeal (Article 72§4).
The violations in these cases occurred before these modifications.
It was confirmed during the bilateral contacts that these issues were given special attention.
The European Court’s judgments were translated and published on the website of the Ministry of Justice (www.justice.cz) and they were also discussed at the meeting of the plenary of the Constitutional Court.

The Deputies decided to resume consideration of these items at their 1065th meeting (15-16 September 2009) (DH), in the light of a draft final resolution to be prepared by the Secretariat.

48548/99 Zich and others, judgments of 18/07/2006, final on 18/10/2006 and of 21/12/2006 - Friendly settlement (Article 41)
The case concerns the restoration of a building, acquired in good faith by the applicants, to its previous owners. The eight applicants are members of the housing co-operative which formerly owned a block of flats in Prague. In the 1960s ownership of the building was transferred to the State by its original owners because they were in difficult circumstances. In 1981 the building was acquired by the predecessor of the housing co-operative through an agreement with the State. The co-operative carried out a large-scale reconstruction and modernisation project.
In 1991 the successors in title to the original owners brought an action to recover ownership of the building from the co-operative. On 23/03/1994 the Prague 3 District Court ordered the co-operative to reach an agreement for the return of the building on such terms that the plaintiffs would become co-owners; it held that it had been established that the plaintiffs had been in financial difficulties at the time of the transfer, that they were accordingly entitled to apply for restitution under section 3 of the Extrajudicial Rehabilitation Act and that the co-operative was required to return the property. The judgment was upheld on appeal and the applicants appealed - unsuccessfully – before the Supreme and the Constitutional Courts. Then the Ministry of Finance reached an agreement with the co-operative under the terms of which, in August 1999, the latter was reimbursed the price it had paid to purchase the property in 1981 (53 470 euro). In July 2002 the District Court dismissed a claim by the co-operative against the state for the difference in value between the purchase price and the sum paid, partly by its members and partly by the bank, for the reconstruction and modernisation of the building.
The European Court considered that the applicants had title to a possession and that the return of the property had entailed an interference with their right to the peaceful enjoyment of it. That interference, which had been based on the Extrajudicial Rehabilitation Act, had been in public interest. The European Court noted nonetheless that the co-operative had acquired the property in good faith, without knowing that it had been given to the state by its former owners under pressure, and for the price fixed in accordance with the law. It further observed that under the Extrajudicial Rehabilitation Act the co-operative had been entitled to reimbursement of the price it had paid to purchase the property in 1981. In those conditions, the European Court considered that the applicants had had to bear an “individual and excessive burden” and that the Czech authorities, in applying the Extrajudicial Rehabilitation Act, had not taken into consideration the conditions in which the return of the property had been effected, particularly the terms of the compensation intended to lighten the burden the applicants had to bear (violation of Article 1 of Protocol No. 1).
Individual measures: The pecuniary damage sustained was the subject of the friendly settlement concluded before the European Court. Moreover, the European Court awarded the applicants just satisfaction in respect of the non-pecuniary damage suffered.
General measures: The case presents similarities to those of Pincová and Pinc (no. 36548/97) and Zvolský and Zvolská (46129/99) (see Final Resolution CM/ResDH(2007)30 adopted on 20/04/2007).
The judgment of the European Court was translated and published on the website of the Ministry of Justice (www.justice.cz). Moreover, the judgment on the merits was the subject of the Government resolution n° 1258 of 01/11/2006 by which the friendly settlement on the just satisfaction was approved; in that way, it was brought to ministries’ and courts’ attention.

The Deputies decided to resume consideration of this item at their 1065th meeting (15-16 September 2009) (DH), in the light of a draft final resolution to be prepared by the Secretariat.

      - Case concerning the right of access to the Constitutional Court due to its excessively formalistic interpretation of the admissibility rules

24021/03 Faltejsek, judgment of 15/05/2008, final on 15/08/2008
This case concerns the violation of the applicant's right of access to a court due to the Constitutional Court's restrictive interpretation of the admissibility rules.
In 2002, the applicant lodged a constitutional appeal alleging that his rights to judicial protection and to respect for his property had been breached in civil proceedings brought against him. On 04/02/2003 the Constitutional Court declared his appeal inadmissible in view of the fact that he had failed to exhaust statutory remedies by lodging a plea of nullity (violation of Article 6§1).
The European Court noted that in most of its decisions adopted before and after that at issue in the applicant’s case, the Constitutional Court had not reproached the appellants for not having filed a plea of nullity; in this regard, the applicant’s case constituted an exception (see §§33).

Therefore the European Court found that in the circumstances of the case and in view of the then-relevant case-law of the Constitutional Court, requesting the applicant to lodge a plea of nullity before addressing the Constitutional Court imposed a disproportionate burden on him. Thus the Czech Constitutional Court had interpreted the procedural rule at issue in such a restrictive manner that the applicant had been deprived of his right of access to a court.
Individual measures: In its decision on partial admissibility, the European Court dismissed the applicant’s complaint lodged under Article 1 of Protocol No. 1 as manifestly ill-founded. The applicant nevertheless requested more than 2.5 million CZK (about 100 000 euros) for pecuniary damage, which allegedly amounted to the value of property at issue; he also asked for compensation for the non-pecuniary damage sustained. The European Court did not find any causal link between the pecuniary and non-pecuniary damage as claimed by the applicant and the violation of Article 6 found, and it concluded that it could not further speculate on what would have been the issue of the proceedings should the Constitutional Court have examined the applicant’s constitutional appeal. It finally held that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant.
The Czech authorities underlined that this case had been examined on the merits at first and second instance; that the same alleged violation of the Convention which the applicant intended to raise before the Constitutional Court had been declared inadmissible by the European Court; and that the applicant had made no claim in respect of individual measures.
In this case, any suggestion of reopening the proceedings before the Czech Constitutional Court would seem to run up against the principle of legal certainty to which the other party to the civil proceedings is entitled. Furthermore, in the light of the Czech authorities' arguments and those of the Court concerning the claim of just satisfaction, it would not seem that the violation affected the outcome of the proceedings in question. This being the case, it is unnecessary to pursue the question of individual measures.
General measures: The case is different from that of Běleš and others (judgment of 12/11/2002, Final Resolution CM/ResDH (2007)115): the measures adopted following the Běleš and others case do not concern the particular problem raised by this case which seems to constitute an isolated incident (see §33 of the judgment).
Referring to §33 of the European Court’s judgment, the Czech authorities observed that the dismissal of the applicant’s constitutional appeal constituted an exception to the rule, as in other similar cases the Constitutional Court had declared appeals admissible even though the appellants had not lodged a plea of nullity.
The judgment of the European Court was translated and published on the website of the Ministry of Justice (www.justice.cz <http://www.justice.cz>). It was also discussed at the meeting of the plenary of the Constitutional Court where due notice of its content was taken.

The Deputies decided to resume consideration of this item at their 1065th meeting (15-16 September 2009) (DH), in the light of a draft final resolution to be prepared by the Secretariat.

      - Cases concerning the right of access to the Constitutional Court due to its excessively formalistic interpretation of the admissibility rules

40593/05 Regálová, judgment of 03/07/2008, final on 03/10/2008
27088/05 Rechtová, judgment of 26/06/2008, final on 26/09/2008
The cases concern the violation of the applicants’ right of access to a court due to the dismissal of their constitutional appeals mainly as being out of time (violation of Article 6§1).
In the Regálová case, the applicant lodged a constitutional appeal seeking that decisions adopted by the courts of first and second instance on her rights of succession be quashed as being based on an incorrect legal construction and contrary to her right to inherit. On 12/09/2005 the Constitutional Court, applying Law No. 182/1993 in its version in force until 01/04/2004 and read in the light of its communication No. 32/2003, dismissed her appeal as being lodged out of time, considering that the time-limit could not run from the Supreme Court’s decision declaring the applicant’s appeal on points of law inadmissible.
In the Rechtová case, the applicant lodged a constitutional appeal seeking that all previous decisions dismissing her claim for compensation following a surgical operation be quashed as the courts had infringed her right to judicial protection. On 17/02/2005 the Constitutional Court, applying Law No. 182/1993 in its version in force until 01/04/ 2004 and read in the light of its communication No. 32/2003, dismissed her appeal as being out of time with regard to complaints related to the lower courts’ decisions, considering that the time-limit for lodging these complaints could not run from the Supreme Court’s decision declaring the applicant’s appeal on points of law inadmissible.

The European Court observed that in both cases, the decisions of the Constitutional Court had been adopted after this court had changed its practice, as from the publication of its communication on 03/02/2003, concerning the admissibility and the time-limit set for constitutional appeals in cases where an extraordinary appeal was lodged. However, the Constitutional Court had failed to explain in its cursory and general reasoning why it had not applied the principles set forth in the above communication (which differed from the more restrictive wording of Law nº 83/2004 which entered into force on 01/04/2004) (see §32 of the Regálová judgment).
The European Court, referring to its previous findings in the cases of Běleš and others (judgment of 12/11/2002, Resolution CM/ResDH(2007)115, adopted on 31/10/2007) and Zvolský and Zvolská (judgment of 12/11/2002, Resolution CM/ResDH(2007)30, adopted on 20/04/2007), found that the Czech Constitutional Court had interpreted a procedural rule in such a restrictive manner that the applicants had been deprived of their right of access to a court.
Individual measures:
In the case of Regálová, the applicant’s other complaint concerning inheritance lodged under Article 1 of Protocol No. 1 was declared inadmissible by the European Court as being incompatible ratione materiae; the applicant submitted no request for just satisfaction.
In the case of Rechtová, the applicant’s other complaint related to the fairness of the proceedings was declared inadmissible by the European Court. The applicant requested compensation for pecuniary damage, which allegedly amounted to the costs incurred for her medical treatment, loss in salary and the deterioration of the quality of her social life. The European Court did not find any causal link between the alleged non-pecuniary and pecuniary damage as claimed by the applicant, and the violation of Article 6 found, and it concluded that it could not further speculate on what would have been the issue of the proceedings, should the Constitutional Court have accepted and examined the constitutional complaint lodged by the applicant. It finally held that the finding of a violation constituted in itself sufficient just satisfaction for any non-pecuniary damage sustained.
The Czech authorities underlined that these cases had been examined on the merits at least at first and second instance, that the same alleged violations of the Convention that the applicants had intended to raise before the Constitutional Court had been declared inadmissible by the European Court, and that the applicants had made no claim in respect of individual measures.
In these cases, any suggestion of reopening the proceedings before the Czech Constitutional Court would seem to run up against the principle of legal certainty to which the other party to the civil proceedings is entitled. Furthermore, in the light of the Czech authorities' arguments and those of the Court concerning the claims of just satisfaction, it would not seem that the violation affected the outcome of the proceedings in question. This being the case, it is unnecessary to pursue the question of individual measures.
General measures: The cases present similarities to the Běleš and others case (judgment of 12/11/2002, Resolution CM/ResDH(2007)115) following which general measures have been adopted: the change of practice of the Czech Constitutional Court was announced by means of a communication published in February 2003, and the new legislation concerning the admissibility requirements of constitutional appeals entered into force on 01/04/2004. In these cases the Constitutional Court applied the relevant law in its transitory version, i.e. read in the light of the 2003 communication and as it stood before the 01/04/2004 amendment; the violations appear therefore to be isolated incidents as the principles set forth in the 2003 communication were replaced by those embodied in the new legislation.
The authorities observed that in these cases the Constitutional Court had been of the view that the inadmissibility of their appeals on points of law could have been anticipated by the applicants. The European Court had nevertheless considered that, according to the provisional rules set down in the communication of February 2003, the Constitutional Court should have declared the applicants’ constitutional appeals admissible notwithstanding the reasons for the dismissal of their appeals on points of law. The Czech authorities are convinced that these two cases do not reveal any new systemic problem which would call for adoption of any legislative measures; according to them, the Constitutional Court had simply not been able to achieve an acceptable balance between the applicants’ right of access to a court and the need to ensure the effective operation of the judicial system.
It was also confirmed during bilateral contacts that these issues were being given special attention.
The European Court's judgments were translated and published on the website of the Ministry of Justice (www.justice.cz) and they were also discussed at the meeting of the plenary of the Constitutional Court.

The Deputies decided to resume consideration of these items at their 1065th meeting (15-16 September 2009) (DH), in the light of a draft final resolution to be prepared by the Secretariat.

20728/05 Vokoun, judgment of 03/07/2008, final on 03/10/2008
This case concerns a breach of the right to a fair and adversarial trial before the Constitutional Court in December 2004, in that the applicant did not receive a copy of the observations of the Supreme Court’s judge concerning his constitutional appeal (violation of Article 6§1).
Individual measures: In the proceedings before the Constitutional Court, the applicant complained solely of the lack of reasoning of the Supreme Court’s decision on his appeal on points of law (lodged at the end of the civil proceedings in which he unsuccessfully claimed recognition of his title to a property). The same complaint raised under Article 6§1 of the Convention, as well as a complaint lodged under Article 1 of Protocol No. 1 were declared inadmissible by the European Court in its partial decision on admissibility.
The applicant requested compensation for pecuniary damage allegedly corresponding to the value of the property at issue. The European Court rejected this claim finding no causal link between the violation found and the applicant’s claim for pecuniary damage. It also noted that it could not further speculate on what would have been the issue of the proceedings before the Constitutional Court should the latter have observed the requirements of Article 6, and concluded that the circumstances of the case did not allow it to regard the applicant as having suffered a loss of real opportunity. Furthermore, the European Court held that the finding of a violation was sufficient to redress any non-pecuniary damage sustained by the applicant.
The Czech authorities underlined that this case had been examined on the merits at least at first and second instance, that the same alleged the violation of the Convention which the applicant had raised before the Constitutional Court had been declared manifestly ill-founded by the European Court, and that the applicant had made no claim in respect of individual measures.
In this case, any suggestion of reopening the proceedings before the Czech Constitutional Court would seem to run up against the principle of legal certainty to which the other party to the civil proceedings is entitled. Furthermore, as stated by the European Court, the circumstances of the case did not indicate that the applicant had suffered any loss of real opportunity, which is corroborated by the observations of the Czech authorities. This being the case, it is unnecessary to pursue the question of individual measures.
General measures: This case presents similarities to that of Milatová against the Czech Republic (judgment of 21/06/2005, closed by final resolution ResDH(2006)71, adopted on 20/12/2006), in which the plenum of the Constitutional Court, on 25/05/2005, adopted a recommendation to reporting judges that observations of the other parties, including courts, should be communicated to applicants for possible comments when they contain, or might contain, new facts, allegations or lines of argument. It was confirmed during bilateral contacts that Constitutional Court judges had been asked to be vigilant and to send the observations to the other party even in case of doubt whether or not new facts are contained.
The European Court’s judgment was translated and published on the website of the Ministry of Justice (www.justice.cz) and it was also discussed at the meeting of the plenary of the Constitutional Court.

The Deputies decided to resume consideration of this item at their 1065th meeting (15-16 September 2009) (DH), in the light of a draft final resolution to be prepared by the Secretariat.

- 1 case against Estonia

38241/04 Bergmann, judgment of 29/05/2008, final on 29/08/2008
The case concerns the the violation of the applicant's right to prompt and automatic judicial control of his detention in that a court order of 31/03/2004 revoking his bail was based on a decision taken approximately two years beforehand. The domestic court made no fresh examination of the circumstances to determine whether or not the applicant’s renewed detention was justified, nor heard the applicant in person.
The European Court further noted that that the first opportunity for the applicant personally to present with arguments for his release before a court was not until 26 days after his arrest and found that such a period was incompatible with the requirement of “promptness” under Article 5§3 (§46 of the judgment) (violation of Article 5§3).
Individual measures: The European Court awarded just satisfaction in respect of the non-pecuniary damage sustained by the applicant. In December 2004 the applicant was sentenced to three years’ and six months’ imprisonment, less the time already spent in custody.
Information provided by the Estonian authorities (28/10/2008): The applicant has now served his sentence and thus is no longer detained.

General measures: The Estonian authorities have stated that the violation found in this case is an isolated one and does not call for any general measures of legislative or administrative nature.
• Publication and dissemination: The Estonian authorities indicated on 28/10/2008 that the European Court’s judgment is being translated in Estonian and will be placed on the website of the Council of Europe Information Centre (www.coe.ee). It has been distributed to the authorities concerned, in particular courts, prosecutors and police officials.

The Deputies decided to resume consideration of this item at their at their 1065th meeting (15-16 September 2009) (DH), in the light of a draft final resolution to be drafted by the Secretariat.

- 4 cases against Finland

70216/01 Laaksonnen, judgment of 12/04/2007, final on 12/07/2007
45830/99 Nuutinen Juha, judgment of 24/04/2007, final on 24/07/2007
These cases concern the unfairness of certain criminal proceedings brought against the applicants due to the fact that they were not informed in detail of the accusations against them.
In the Laaksonen case, the Helsinki Court of Appeal found in June 1999, with no oral hearing, that the applicant had been complicit in a fraudulent bankruptcy, even though he had initially been charged with having committed the same offence, but acquitted at first instance. The European Court considered that in the circumstances of the case and given the outcome of the proceedings, the applicant should have been given the opportunity to contest the accusation laid against him (violation of Article 6§1).
In the Juha Nuutinen case, the applicant had been charged with certain tax offences of which he was found guilty at first instance. The Turku Court of Appeal found in August 1997 that he had been complicit in these offences as well as in another which had not appeared on the initial list of charges. The European Court considered that his defence rights had been violated in that he had not been able properly to contest this new accusation (violation of Articles 6§1 and 6§3 (a) and (b)).
Individual measures: The European Court awarded just satisfaction in respect of the non-pecuniary damages suffered by the applicants. Furthermore, the applicants may apply for reopening of the cases (Chapter 31, Article 2, of the Code of Judicial Procedure).
General measures: The new Criminal Procedure Act (Act No. 689/1997), which came into force on 01/10/1997, codified the rule according to which an accused may not be convicted of an offence not mentioned in the bill of indictment. This provision was not observed in these cases, as the proceedings at issue began before the entry into force of the new Act.
As regards the lack of oral hearing in the Laaksonen case, even according to the provisions of the Code of Judicial Procedure (Act no. 661/1978) in force at the time, the appellate court could not change the district court’s judgment without holding an oral hearing unless the sentence was only a fine or the oral hearing was manifestly unnecessary (see § 17 of the judgment). The current Code of Judicial Procedure contains the same provision.
Furthermore, the judgments of the Court were published in the legal database Finlex (www.finlex.fi) and disseminated to numerous domestic authorities, including the Parliament/Constitutional Committee, the Parliamentary Ombudsman, the Supreme Court, the Ministry of Justice and the courts concerned.

The Deputies decided to resume consideration of these items at their 1065th meeting (15-16 September 2009) (DH), in the light of a draft final resolution to be prepared by the Secretariat.

20511/03 I., judgment of 17/07/2008, final on 17/10/2008
The case concerns the domestic authorities’ failure to protect the applicant’s patient records against unauthorised access by medical personnel of a public hospital in 1992 (violation of Article 8).
The European Court observed that in the early 1990s there were general provisions in Finnish law to protect sensitive personal data, strict application of which would have constituted a substantial safeguard for the applicant’s rights, making it possible in particular strictly to police access to disclosure of health records. However, the records system in place in the hospital in question did not conform to the requirements contained in the relevant domestic law, in particular Section 26 of the Personal Files Act.
Individual measures: The European Court awarded the applicant just satisfaction in respect of pecuniary and non-pecuniary damage.

General measures: The European Court noted that the guarantees provided in domestic law were not observed at the time of the events in the hospital at issue. It was only since 1992, following the applicant’s suspicions about an information leak, that access to her medical records was restricted to the treating clinic’s personnel, and only in 1998, following the applicant’s complaint to the County Administrative Board, that a retroactive control of data access was established (§45 of the judgment).
The violation in this case is an isolated incident. A summary of the judgment in Finnish was published in the legal database Finlex (www.finlex.fi) and the judgment was sent out to the Parliamentary Ombudsman, the Office of the Chancellor of Justice, the Parliament/Constitutional Law Committee, the Supreme Court, the Supreme Administrative Court, the Ministries of Justice, of Social Affairs and Health and of the Interior, the Office of the Data Protection Ombudsman, the National Supervisory Authority for Welfare and Health and to the Turku District and Appeal Courts.

The Deputies decided to resume consideration of this item at their 1065th meeting (15-16 September 2009) (DH), in the light of a draft final resolution to be prepared by the Secretariat.

      - Case concerning the unfairness of insurance proceedings due to impossibility of commenting on medical opinions included in the case file

28301/03 S.H., judgment of 29/07/2008, final on 29/10/2008
The case concerns the unfairness of insurance proceedings with regard to an accident pension of the applicant, who was denied the opportunity to comment on two medical opinions included in her case file in 2002.
The European Court concluded that the applicant had therefore not been able to participate properly in the proceedings (violation of Article 6§1).
Individual measures: The applicant may request the reopening of the proceedings in question. The European Court awarded her just satisfaction in respect of non-pecuniary damage.
General measures: This case presents similarities to the K.P. case in which the facts occurred in 1994-1995 (n° 31764/96, judgment of 31/05/2001, closed by the Resolution ResDH(2006)59, adopted on 02/11/2006). Having taken place after the adoption and publication of the K.P. judgment, the violation found in this case seems to remain isolated. Nevertheless, for all practical purposes, an excerpt of the judgment in Finnish was published in the legal database Finlex (www.finlex.fi <http://www.finlex.fi>) and the judgment was sent out to the Parliamentary Ombudsman, the Office of the Chancellor of Justice, the Parliament/Constitutional Law Committee, the Supreme Court, the Supreme Administrative Court, the Ministries of Justice and of Social Affairs and Health, the National Supervisory Authority for Welfare and Health, to the Employment Accidents Appeal Board and to the Insurance Court.

The Deputies decided to resume consideration of this item at their 1065th meeting (15-16 September 2009) (DH), in the light of a draft final resolution to be prepared by the Secretariat.

- 10 cases against France

16022/02 Roux, judgment of 25/04/2006, final on 25/07/20063

62236/00 Guilloury, judgment of 22/06/2006, final on 22/09/20064

6253/03 Vincent, judgment of 24/10/2006, final on 26/03/2007, rectified on 25/09/2008
This case concerns the degrading treatment of the applicant during his detention from 17/02/2003 until 11/06/2003 at the Fresnes prison. Being a disabled person in a wheelchair, he could not move about and, in particular, leave his cell on his own (violation of Article 3).
The European Court took particular account of the fact that, to get through doors, the applicant had to be carried while one wheel of his wheelchair was dismantled, then reassembled once the wheelchair had passed the doorway, which may be considered as humiliating and demeaning in addition to the fact that the applicant was completely at the mercy of others' availability.

Individual measures: Since 2/10/2006 (except for temporary stays in other prisons between 5/08 and 9/09/2008), the applicant has been detained in Liancourt prison which, although old, has among other things individual cells on the ground floor, where the medical department is situated and detainees' activities are held. The applicant complains of his present detention conditions, which he finds inappropriate to his disability and seised the administrative judge of his complaint. The Administrative Tribunal of Amiens, by an ordinance of its President, rejected the applicant's appeal, considering that it is possible for the applicant to move without assistance in his cell and in the prison and in particular that he may enter and leave his cell on his own (which was not the case in Fresnes). The applicant has lodged an appeal to the Conseil d'Etat against this decision.
Finally, the European Court awarded just satisfaction to the applicant for the non-pecuniary damages suffered.
• The information given to the Committee of Ministers shows that, unlike the conditions existing from February to June 2003 in Fresnes prison, criticised by the European Court (no violation having been found for the conditions of detention in other prisons), the applicant can now move and, in particular, leave his cell on his own. This is also confirmed by the French Ombudsman (Médiateur de la République), an independent authority seised by written request by Mr. Vincent. The Ombudsman sent two of his colleagues to verify Mr. Vincent’s conditions of detention. He concluded in particular that Mr. Vincent has “sufficient possibilities of moving on his own” (in his wheelchair, he can pass through the building’s doors, negotiate the slopes alone, has an individual cell, can use a shower equipped with a seat etc.).
In any case, there exist sufficient guarantees concerning the applicant's detention (which, according to the present situation, should end on 11/03/2010). National courts are seised of his complaints: in applying the Convention directly, it is their task to ensure, in particular following the European Court's judgment, that the applicant's conditions of detention comply with the Convention's requirements.
General measures: The Court found (§101) “that applicant and government agreed on the fact that the short-stay prison of Fresnes, a very ancient establishment, is particularly inappropriate for the detention of physically disabled persons”.
- It is possible to avoid new, similar violations by ensuring, on a case-by-case basis, of the detention of disabled persons in one or another prison on the French territory, depending from their specific facilities (see below) and so as to ensure that the available equipment responds to the need of the persons concerned. The Directorate of Prison Administration, directly responsible to the Ministry of Justice, is the authority competent in this respect. Its attention has been drawn to the conclusions of this judgment. The judgment has been communicated to the courts concerned and also presented in a table published on the Ministry of Justice intranet site (table listing all the judgments and decisions delivered by the Court during the year, indicating in particular the complaints in respect of which the Court found a violation or a non-violation, as well as complaints declared inadmissible). Furthermore, this judgment, as all judgments against France, has been sent out to the courts and to the directorates of the Justice Ministry concerned. It was also presented in detail in the Bulletin d'information of the Cour de cassation No. 651 of 01/12/2006. Various specialist articles have also been published in widely read legal journals.
- Concerning the prison specific facilities, following details may be noted. The prisons administration has 118 cells at its disposal for motor-disabled detainees. These cells are predominantly situated in short-stay prisons. However, in order to optimise the existing system the directorate of the prisons administration has recently introduced a management system for the cells for disabled persons. A map of existing places is kept up to date in order to best reconcile the penal, penitentiary and health requirements in each given case. This system also makes it possible to anticipate situations.
In old prisons which are to be kept in operation, works are scheduled each year. Each time it is technically possible, cells for disabled persons will be created. At the Liancourt detention centre, where Mr Vincent is currently detained, there will be a new building of 80 places, with 20 cells specially conceived for disabled persons. The reorganisation of the establishments of Fleury-Merogis, Marseille and Nantes foresees the creation of respectively 26, 6 and 3 cells for disabled persons before 2014.

A construction program of 13 200 extra places in the French penitentiary system has begun. These places will include 1% cells adapted for disabled persons. The movement and all the activities and conveniences have been examined with a view to the presence of the disabled, be they detainees, visitors, contributors or staff. Finally, under the 11/02/2005 Act, all forms of handicap must be taken into account in establishments receiving public within ten years. Disability provision in prisons will be specifically handled by a joint decree of the Ministries of Equipment and of Justice which will fix accessibility rules for future constructions and for existing prisons. The situation is evolving towards adjusting of all French prisons to the presence of handicapped persons as of 2015.
The efforts by the French authorities to improve the conditions of treatment of prisoners will continue, not least in the framework of their cooperation with the CPT. In this respect, the French authorities recall that in its answer to the CPT's report on its visits to French prisons (document CPT/Inf(2007)45 of 10/12/2007), the government expresses its conviction that the CPT's visits, combined with the other similar mechanisms, contribute to the improvement of the treatment of persons deprived of liberty and to the respect for their fundamental rights. The adoption by the French Parliament of Law No. 2007-1545 of 30/10/2007, creating the post of General Controller of Places of Detention, apart from implementing the Optional Protocol to the Convention against torture and other cruel, inhuman or degrading treatment or punishment, also shows the will of the French authorities to work towards better respect for the fundamental rights of prisoners.

The Deputies decided to resume consideration of this item at their 1065th meeting (15-16 September 2009) (DH), in the light of a draft final resolution to be prepared by the Secretariat.

43546/02 E.B., judgment of 22/01/2008 – Grand Chamber
This case concerns the discriminatory treatment suffered by the applicant on account of her sexual orientation in the context of an application for authorisation to adopt a child, violating her right to the respect of her private life (violation of Article 14, combined with Article 8).
The final rejection of her application in 1999 by the competent local authorities (President of the Conseil Général of Jura, based on the recommendation of the local social services), confirmed by the administrative tribunals, was principally based on two elements: first, the attitude of her partner, in particular the lack of commitment on her part to the adoption plan, and second, the absence of a “father-figure” in the household.
The European Court found no discrimination with regard to the first ground for rejection (partner’s attitude). In this respect, it underlined inter alia that where a male or female applicant, although unmarried, has already set up home with a partner, that partner's attitude and the role he or she will necessarily play on a daily basis in the life of the child joining the home require a full examination in the child's best interests. The Court added that it would be surprising, to say the least, if the relevant authorities, having been informed of the existence of a de facto couple, pretended to be unaware of that fact when assessing the conditions in which the child would be given a home and his future life in that new home.
The Court, however, reached the opposite conclusion with regard to the second ground of rejection (absence of “father-figure”). According to the Court, this ground does not necessarily raise a problem in itself; but it has been used in an excessive manner in the specific circumstances of the case, concerning the adoption by a single person. In the Court's view, in the whole procedure the reference to the applicant's homosexuality was at least implicit and the influence of this element on the appreciation of the application was decisive (in particular: the national authorities referred to the applicant's “lifestyle”; the refusal has been delivered in the light of certain opinions expressed in a manner which was indeed revealing in that the applicant's homosexuality was a determining factor, etc.). As a result, the applicant suffered a difference in treatment. In view of the fact that national law (Code civil) authorised the adoption of a child by a single person and remained silent as to the necessity of a referent of the other sex and in view of the fact that the applicant was said to present “undoubted personal qualities and aptitude for bringing up children” by the authorities, the European Court concluded that the difference in treatment was discriminatory as it was based on the applicant's sexual orientation.
The Court noted that these two main grounds of rejection formed part of an overall assessment of the applicant's situation. For this reason, the Court considered that they should not be considered alternatively, but concurrently. Consequently, the illegitimacy of one of the grounds had the effect of contaminating the entire decision.

Individual measures: Without the authorisation denied the applicant in the proceedings at issue, adoption is legally impossible. The European Court granted the applicant just satisfaction in respect of non-pecuniary damage.
In view of the nature of the violation found by the Court, the execution of the judgment of 22/01/2008 does not imply that the applicant must receive the requested authorisation. It is her own choice to make use or not of the possibility of making a fresh application for an authorisation to the competent Conseil Général (see General measures), and if she does so her application must be examined without any discrimination.
The applicant informed the Committee of Ministers that following the European Court’s judgment, she lodged a new application for authorisation to adopt a child and that the authorisation has been again refused, by decision of 26/01/2009. This refusal does not put forward the applicant’s sexual orientation, which is acknowledged by the lawyer who is assisting her in the procedure. However, the applicant maintains that the grounds of rejection are fallacious and aimed at hiding the true reason of that rejection, namely her sexual orientation. She indicated that she had contested that decision before the administrative courts and that she lodged a complaint before the French High Authority against Discrimination and for Equality (Haute Autorité de Lutte contre les Discriminations et pour l'Egalité - www.halde.fr).
In this respect, the authorities underline, besides the fact that the new refusal to deliver an authorisation is in any case not manifestly based on Ms. E.B.’s sexual orientation, that the applicant may contest this decision before the national administrative courts – which indeed she has done (the proceedings are pending). The administrative judges who apply the Convention directly, have good knowledge of the European Court’s judgment of 22/01/2009, at all degrees of jurisdiction. The authorities conclude that the principles laid down by the Court in this judgment thus cannot be misjudged by the administrative courts in the examination of the complaints lodged by Ms. E.B.
General measures: Article 343-1 of the Civil Code provides that any single person over 28 may apply to adopt. French law therefore allows adoption by single persons, without taking their sexual orientation into account. Thus the law itself is not in question. It is important that the applications for authorisation to adopt be treated by the competent authorities, under the control of the national judges, without any distinction based on the sexual orientation of the applicant, a distinction which is not authorised under the Convention.
Consequently, the judgment has been sent out to all the authorities competent in this field. Applying directly the Court’s judgment, they will avoid new, similar violations.
First, the judgment has been sent out to the authorities competent to deliver authorisations to adopt a child. The European Court’s judgment has been published on the Ministry of Interior intranet site, in the Local Authorities Legal Information Bulletin (Lettre d'information du droit des collectivités locales), in March 2008. By this avenue, all the Préfectures have been informed of the judgment ands they will ensure that it is duly taken into account by the Conseils Généraux (the Préfectures have the competence to supervise the legality of local authorities’ decisions; furthermore, they play a role of legal advice). Several specialised journals which are at the Conseils Généraux disposal also published commentaries upon the judgment, such as L’Actualité Sociale Hebdomadaire (ASH). Thus, the Conseils Généraux legal departments, implementing their duty of legal supervision, could make an update for the field agents and in particular those responsible for dealing with the applications for authorisation to adopt a child. Furthermore, the report on adoption in France requested by the French President in October 2007 and delivered on 19/03/2008 by Jean-Marie Colombani, refers to the judgment (page 191 of the report) and explains its content in details, which offered a wide publicity for the attention of the departments in charge of adoption matters in the Conseils Généraux. Finally, the Directorate General of Social Action - Ministry of Health, confirmed that it transpires from the regular contacts held with the Conseils Généraux that the E.B. judgment is now well known by the departments in charge of adoption matters.
Secondly, the judgment has been sent out to the courts competent to rule on the legality of refusals to deliver authorisation. The European Court’s judgment has been brought to the attention of the Conseil d'Etat and of administrative tribunals and courts of appeal via their intranet sites, with a view to ensuring the broadest possible dissemination of the judgment amongst administrative judges.

The Deputies decided to resume consideration of this item at their 1065th meeting (15-16 September 2009) (DH), in the light of a draft final resolution, to be drafted by the Secretariat.


- Cases concerning freedom of expression
54968/00 Paturel, judgment of 22/12/2005, final on 22/03/2006
71343/01 Brasilier, judgment of 11/04/2006, final on 11/07/2006
35916/04 Chalabi, judgment of 18/09/2008, final on 18/12/2008
22567/03 Desjardin, judgment of 22/11/2007, final on 22/02/2008
64016/00 Giniewski, judgment of 31/01/2006, final on 01/05/2006
These cases concern breaches of the applicants' right to freedom of expression due to findings against them in proceedings for defamation, both criminal and civil, between 1994 and 2004, under the terms of Article 29 to 31 of the Law of 29/07/1881 on the freedom of the press (violations of Article 10).
In the Paturel case, the applicant received a criminal conviction on the basis of extracts from a book he had published. The European Court, unlike the domestic courts, found that the value-judgments at the origin of his conviction were in reality adequately based in fact.
The same conclusion was reached in the Brasilier and Desjardin cases which concerned civil courts' findings against politicians on the basis of pamphlets and banners used in electoral campaigns.
In the Giniewski case, the civil courts found against the applicant in respect of an article he had published, the European Court considering, unlike the domestic courts, that the article did not really constitute an attack on religious convictions as such and was neither “gratuitously offensive” nor insulting, nor likely to incite disrespect or hatred.
In the Chalabi case, the civil courts found against the applicant in respect of the publication of a press article including in particular an interview with the applicant, a former member of the Board of Directors of the Grand Mosque of Lyon, criticising the behaviour of the Mosque's Director. The European Court held that the comments in question were to be regarded as value judgments and that, contrary to the view taken by the Lyons Court of Appeal, at the time of the article, had not been entirely without factual basis. Furthermore, the European Court also held that the comments themselves did not contain any “manifestly insulting” terms such as to justify restricting the author's freedom of expression and considered that the language used by the applicant could not be regarded as excessive.
Individual measures:
1) Paturel case: The applicant was ordered by a criminal judgment to pay a fine and damages. The European Court awarded just satisfaction covering the sums he was required to pay as a result of the proceedings at issue.
As regards other possible negative consequences of the violation, in particular the inclusion of the conviction on the applicant's criminal record, as this was a result of judicial decisions, the principle of the parallelism of forms requires that their removal can only be brought about by another judicial decision. With this in mind it may be noted that, following the European court's judgments, the applicant may apply for re-examination of the relevant domestic decision by virtue of Article L 626 et seq of the Code of Criminal Procedure.
There are two further means of changing their criminal records if the applicant so wished. These procedures concern only part of the criminal record (Part 2, which is accessible to a certain number of public administrations specified in the Code of Criminal Procedure), but even if this is done, Part 1 is still visible to judges. This forms part of the process of rehabilitation which is an entitlement in certain cases (depending on time-limits which vary with the seriousness of the offence) and may be applied for before a court (Article 782 et seq of the Code of Criminal Procedure). The other means is a request to be dispensed from having an inscription in one's criminal record, which enables convicted persons to ask the court which convicted them not to include the offence in Part 2 of the record.
The competent courts apply the Convention directly and are aware of the present case-law of the European Court (see the general measures). The principles developed by the Court in these cases could not be disregarded by these courts when examining complaints the applicant might possibly submit to them.
2) Brasilier, Giniewski, Desjardin and Chalabi cases: The applicants were ordered in civil proceedings to pay certain sums, but there seem to be no further negative consequence for them resulting from the violations. In these cases either:
- the damages were symbolic and the applicant's have not asked for just satisfaction in respect of them (Brasilier and Giniewski) or;
- the European Court has granted just satisfaction accordingly (Desjardin) or;
- the applicant had not paid the penalties personally, because the company owning the magazine in which the article was published was declared liable under civil law for the financial penalties imposed (Chalabi).

General measures: It is the grounds relied upon by the domestic courts in finding against the applicants (i.e. their application of the relevant texts) which the European Court has called into question. The legislative provisions are not called into question. This is why measures have been taken to ensure broad publicity for these judgments of the European Court and for other similar judgments, so that the competent courts, applying the convention directly, may take them into account in practice.
All the judgments have been sent out to relevant courts and directorates of the Ministry of Justice. Furthermore, in view of the number of cases concerned, a particular effort of dissemination of the European Court’s case-law appeared necessary. Hence, a document precisely concerning this subject is available on the Cour de cassation website; this document is called “Liberté d’expression et protection de la personnalité en matière de presse" (French and European law – July 2008). The document presents in detail the European Court’s case-law in the field in question (including the present cases) and presents more generally the actions and decisions of the Council of Europe in that field (Committee of Ministers, Parliamentary Assembly and others). The authorities add that this document constitutes a new example of the importance that national courts grant to the European Court’s case-law.
It can also be noted that the Paturel and Mamère judgments (section 4.2) have also been published, with a commentary, on the website of the Office of European, International and Constitutional Law of the Directorate of Public Freedoms and Legal Affairs of the Ministry of the Interior. The Mamère judgment was also transmitted on 27/11/2006 to the Cour de cassation and the Prosecutor General at the Paris Court of Appeal. The Brasilier and Giniewski judgments have been sent to the Cour de cassation, which has issued a commentary accessible to all judges since July 2007 in the European Law Observatory.

The Deputies decided to resume consideration of these items at their 1065th meeting (15-16 September 2009) (DH), in the light of a draft final resolution to be prepared by the Secretariat.

1914/02 Dupuis and others, judgment of 07/06/2007, final on 12/11/2007
This case concerns an infringement of the freedom of expression of the applicants, two journalists and publishing company, on account of their criminal conviction and their being ordered to pay damages following publication of a book containing information derived from an investigation under way at the time (Violation of Article 10). The investigation at issue concerned telephone tapping instigated by the office of the President of the Republic in the mid-1980s against, among others, leading figures in civil society (known as the “les écoutes de l'Elysée”). The judicial decisions at issue were grounded on the violation of the doctrine of the confidentiality of investigations or of professional confidentiality in the interest of protecting the reputation and rights of others and of maintaining the authority and impartiality of the judiciary.
The European Court noted first of all the wide public interest in what could only be described as an affair of state. It noted that the person whose reputation and rights were to be protected was an influential public figure, involved in political life and in government at the highest level, and that in such a situation the limits of acceptable criticism were broader than they might be for a private person. In finding the violation, the European Court took into account not least the wide coverage already given to the case in the media when the book was published, the applicants' respect for the professional ethics of journalism and the negative effect that the decisions at issue might have on the exercise of the freedom of expression.
Individual measures: In civil law, both journalists were jointly ordered to pay damages equivalent to 7 622,5 euros. The publishing company was found civilly liable. Despite these findings, the applicants made no request for just satisfaction before the European Court. Finally, it should be noted that the applicants' book was not withdrawn and no copies were seized.
In criminal law, both journalists were found guilty of using information obtained in breach of investigative or professional confidentiality and each ordered to pay a fine equivalent to 762.25 euros. The applicants requested no just satisfaction. In this respect either. As regards other possible negative consequences of the violation relating to this criminal conviction, the following should be noted: as the inclusion of the conviction in the applicant's criminal records was a result of judicial decisions, the principle of the parallelism of forms requires that their removal can only be brought about by another judicial decision. With this in mind it may be noted that, following the European Court's judgments, the applicant may apply for re-examination of the domestic decision by virtue of Article L 626 et seq of the Code of Criminal Procedure.

There are two further means of changing their criminal records if the applicants so wish. These procedures concern only part of the criminal record (Part 2, which is accessible to a certain number of public administrations specified in the Code of Criminal Procedure), but even if this is done, Part 1 is still visible to judges. This forms part of the process of rehabilitation which is an entitlement in certain cases (depending on time-limits which vary with the seriousness of the offence) and may be applied for before a court (Article 782 and seq of the Code of Criminal Procedure). The other means is a request to be dispensed from having an inscription in one's criminal record, which enables convicted persons to ask the court which convicted them not to include the offence in Part 2 of the record.
The competent courts apply the Convention directly and are aware of the present case-law of the European Court (see the general measures). The principles developed by the Court in these cases could not be disregarded by these courts when examining complaints the applicant could possibly submit to them.
General measures: The violation originated in the national judges' assessment as to whether, in the circumstances of the case, the general public's interest in being informed had prevailed over the “duties and responsibilities” imposed on the applicants in view of the origin of the published documents. The legislative provisions are not called into question. This is why measures have been taken to ensure broad publicity for this judgment of the European Court and more generally to the European Court’s case-law in the field at issue, so that the competent courts, applying the Convention directly, can take them into account in practice.
The Dupuis judgment was one of those presented in detail in a document available on the Cour de cassation website; this document is called “« Liberté d'expression et protection de la personnalité en matière de presse » (French and European law - July 2008).
The detail of the measures adopted is presented under the Paturel group (54968/00, Section 6.1) and other similar cases, that present similarities with the Dupuis case.

The Deputies decided to resume consideration of this item at their 1065th meeting (15-16 September 2009) (DH), in the light of a draft final resolution to be prepared by the Secretariat.

- 1 case against Greece

40907/98 Dougoz, judgment of 06/03/01, final on 06/06/01
Interim Resolution ResDH(2005)21
This case concerns the conditions of the applicant's detention between 1997 and 1998, in the Alexandras Avenue (Athens) Police Headquarters and the Drapetsona (Piraeus) police detention centre. On 25 June 1997, the applicant who was at the time serving a three-year prison sentence following his conviction for drug-related offences, asked for his release on licence claiming that he could return to his country of origin. The competent criminal court decided that the applicant should be released on licence and expelled from Greece. Following this decision the applicant was released on 10/07/1997 and placed in detention in the centres mentioned above pending his expulsion.
The detention conditions were qualified by the European Court as a degrading treatment (violation of article 3) in particular due to the considerable overpopulation and the lack of bedding, combined with the excessive length of his detention under such conditions (about 17 months in all).
The case also concerns the fact that the applicant's detention pending expulsion was not in accordance with a procedure “prescribed by law” in the sense of Article 5§1 of the Convention. The Court noted in this respect that the applicant’s expulsion was ordered by a judicial decision and that his detention, was based on the application by analogy of a ministerial decision applicable to the administrative expulsion of foreigners (violation of Article 5§1).
Finally, the case concerns the fact that the domestic legal system did not afford the applicant an opportunity to have the lawfulness of his detention pending expulsion determined by a national court (violation of Article 5§4).
Individual measures: The applicant is no longer detained in Greece. He was expelled in 1998.
General measures:
1) Violations of Article 5§§1 and 4: The detention and expulsion of aliens following a court order are now regulated by Inter-ministerial Decision 137954 (OJHR B 1255/16.10.2000), issued under Immigration Law 1975/1991 and making express reference to Article 5§1f of the Convention. According to this inter-ministerial Decision, the detention of aliens under expulsion following a court order is now subject to control by the public prosecutor and the courts (in particular under Article 565 of the Code of criminal procedure).

In addition, it should be notes that laws Nos. 2910/2001 and 3386/2005 were adopted to set up a long-term immigration policy. They include a number of measures relating to the administrative expulsion of aliens in specific cases. Detention pending expulsion is only ordered when an alien is considered dangerous to law and order or if there is a risk of his escaping. An appeal before the administrative courts is allowed to challenge the legality of detention ordered. An additional appeal is available if new facts arise (Article76 of Law n°3386/2005).
2) Violation of Article 3:
a) Measures adopted
In the area of immigration, Laws Nos. 2910/2001, 3386/2005 and 3536/2007 have been adopted. Henceforth, detention pending expulsions may not exceed three months (articles 44§3 and 76/3). In the broader context of illegal immigration as observed during recent years, material measures have also been adopted. Special reception centres with appropriate medical staff are also envisaged so as to accommodate adults, minors and families.
One such centre was opened in 2007 in the Prefecture of Evros in Northern Greece. It has a capacity of 500. A second reception centre, which is viewed as model of its kind, has been in operation in Samos since November 2007. As regards the old detention centres ad Rhodope, Mytilini and Piraeus, improvements have been carried out in line with the observations of the committee for the Prevention of torture and of inhuman or degrading treatment or punishment (CPT). The number of persons detained in the Piraeus centre must not exceed 30.
In 2006, a new centre for the transfer of detainees has opened in Athens (Petrou Ralli Avenue). It has a total area 25,000m² and one of its wings is used solely for detainees pending expulsion. This wing has a capacity of 208 men, 150 women and 20 minors. Since 2008, two new centres are operational: the first, at Amygdaleza Attikis is intended to accommodate minors and has 54 places; the second, at Lakonia, has a capacity of 42. As a rough guide, 3.715.818 euros have been spent these last two years for the three new centres in Samos, Lakonia and Evros.
Seven new detention centres opened in various police headquarters, four of which on the border islands of Chios, Samos, Lesbos and Corfu In addition, the Central Police Station in Alexandras Avenue is no longer used for detention pending expulsion, and the Drapetsona Detention Centre has been refurbished in 2005 to provide the best conditions of cleanliness and dignity for detainees (the premises are airy and have more light, adequate sleeping arrangements and sanitation/toilets have been installed). This centre accommodates detainees awaiting expulsion for very short periods only. The number of persons detained does not exceed 60, whilst the centre’s capacity is 76 places.
The authorities underlined the fact that the country, in view of its geographical position, faces an inflow of illegal immigrants which requires action at a European level (see in particular the Commissioner for Human Rights’ report following his visit to Greece on 8-10 December 2008, CommDH(2009)6,§37 and following; furthermore, according to the national authorities’ statistics, in 2008 the number of irregular immigrants exceeded 96 000). In this context they plan to build 27 new accommodation centres with the help of European funding. Closer co-operation between Greece, Cyprus, Malta and Italy to deal with illegal immigration was announced by the Greek Minister for the Interior following the decisions of Council of Ministers of the Interior of the European Union, on 27/11/2008 November in Brussels.
Finally is should be noted that access to lawyers, consular authorities and NGOs is available seven days a week in all detention centres for foreigners. In addition, leaflets outlining the rights of detainees are available in 15 languages in all centres. A personal file is set up for each person detained pending expulsion in which all events during detention are recorded.
b) Continuing improvement of conditions in detention centres for foreigners: The authorities have underlined their firm commitment to pursuing their efforts to improve detention conditions, in the light, in particular, of the recommendations of the European Committee for the Prevention of Torture (CPT).

The Deputies decided to resume consideration of this item at their 1065th meeting (15-16 September 2009) (DH), in the light of a draft final resolution to be drafted by the Secretariat.

- 1 case against Hungary

9174/02 Korbely, judgment of 19/09/2008 – Grand Chamber
This case concerns the violation of the principle no punishment without law (nullum crimen, nulla poena sine lege) because in 2001 the domestic courts convicted the applicant, a retired military officer, for a crime against humanity under international law for having killed a certain Tamás Kaszás and János Senkár in the course of a military operation during the Hungarian revolution in 1956 (violation of Article 7).
The European Court held that the domestic courts had not determined whether the killings had met the additional criteria without which they could not be characterised as a crime against humanity, and in particular whether they were to be regarded as forming part of a state policy involving massive and systematic attacks on the civilian population such as to bring it within the sphere of crimes against humanity, as this notion was to be understood in 1956 (§84).
The European Court also held that Tamás Kaszás was not a non-combatant protected by Article 3 common to the 1949 Geneva Convention since he was leader of an armed group of insurgents and carried a concealed handgun. Moreover, he had failed clearly to signal his intention to surrender, and once it had become known that he was armed he had drawn his gun with unknown intentions in the applicant's presence (§§ 89-91).
Individual measures: The applicant was conditionally released in May 2005 (§48). The European Court did not award any just satisfaction because the applicant had not submitted any claim on this account.
The proceedings in the applicant’s case have been reopened before the Supreme Court. These proceedings are pending.
General measures: The translation of the European Court’s judgment was transmitted to the Office of the National Council of the Judiciary, which is in charge of the administration of the judiciary with a view to familiarising the courts with it. The judgment was also transmitted to the Office of the Attorney General and the Supreme Court with a view to initiating review proceedings. It has been made available on the website of the Ministry and was published in professional journals. The competent committees of the Hungarian Parliament were informed of the measures taken for the implementation of this judgment.

The Deputies decided to resume consideration of this item at their 1065th meeting (15-16 September 2009) (DH), in the light of a draft final resolution, to be drafted by the Secretariat.

- 1 case against Iceland

60669/00 Ásmundsson Kjartan, judgment of 12/10/2004, final on 30/03/2005
The case concerns discriminatory interference with applicant’s right to respect for his property (violation of Article 1 of Protocol No. 1). Following an industrial accident in 1978, the applicant was assessed to be 100% disabled and incapable of continuing to work as a seaman. He was granted a disability pension. In 1992, the method of evaluating disability was changed so that disability was no longer assessed in relation to the ability to perform the same work, but rather work in general. Under the terms of the new rules, the applicant’s degree of disability was reassessed at 25%, i.e. less than the minimum threshold of 35%. Accordingly, after a transitional period of 5 years, his right to a disability pension lapsed, on 01/07/1997.
The European Court found that the new pension rules had been prompted by legitimate concerns and were based on objective criteria. However, the fact that the vast majority of persons in receipt of disability pensions continued to receive benefits as before (although for some at a reduced rate) whilst a small minority (54 including the applicant) had totally lost their pension entitlement, could be considered as excessively and disproportionately differential treatment.
Individual measures: The European Court awarded just satisfaction compensating the loss of the applicant’s disability pension entitlements. It reduced the amounts claimed by the applicant, indicating that a reasonable and proportionate decrease in the applicant’s disability pension rights having regard to the new criteria would be in conformity with his rights under the Convention. The applicant made no claim before the European Court concerning any possible reduction of his retirement pension on account of the violation found.
The applicant indicated to the Committee of Ministers that the violation found would result in a certain reduction of his retirement pension and that the negative consequences of the violation found had not been fully redressed. His retirement pension will become payable in July 2009.

The Icelandic authorities have observed that the case concerns the applicant’s right to a disability pension and not to his retirement pension. This latter question had not been examined by the Court and the internal remedies had not yet been exhausted in this respect. The authorities insist that in any case, payment of the just satisfaction had made it possible to compensate all the consequences of the violation.
In the circumstances of this case, it is difficult to assess the extent to which the violation found by the European Court also had an impact on the applicant’s retirement pension. It may be noted in this respect that the Court criticised the disproportionate nature of the denial of the whole of the applicant’s entitlement to an invalidity pension, whereas a reasonable reduction would have satisfied the requirements of the Convention.
General measures: According to the information received from the Icelandic delegation, a few persons in a situation similar to that of the applicant have contacted the Ministry of Justice. The Ministry has advised them to contact the office of Attorney General in order to claim for compensation. No such compensation has, however, yet been paid to any of these people since no-one has been in exactly the same situation as the applicant.
The Icelandic authorities consider that the remaining persons concerned (about 53) are sufficiently well informed of the possibility to apply to the Attorney General for compensation since the judgment of the European Court was published in Icelandic on the homepage of the Ministry of Justice.

The Deputies decided to resume consideration of this item at their 1065th meeting (15-16 September 2009) (DH), in the light of a draft final resolution to be prepared by the Secretariat.

- 2 cases against Italy

- Case concerning in absentia proceedings
12151/86 F.C.B., judgment of 28/08/91, Resolution DH(93)6 and Interim Resolution ResDH(2002)305

25575/04 Drassich, judgment of 11/12/2007, final on 11/03/2008
This case concerns the violation of the applicant’s right to be informed in detail of the nature and cause of the accusation against him and of his right to have adequate time and facilities for the preparation of his defence in criminal proceedings (violation of Article 6§3 (a) and (b), together with Article 6§1).
By a judgment of 12/06/2002, the Venice Court of Appeal confirmed the applicant’s conviction for forgery and corruption and fixed a global term of imprisonment for three years and eight months, the eight months being the part of the sentence related to the conviction for corruption. The applicant appealed before the Court of Cassation. When examining the applicant’s objection that the offence of corruption of which he was accused was time-barred, the Court of Cassation decided to reclassify the acts he allegedly committed (from simple corruption to corruption in judicial acts). By a judgment of 4/02/2004 the Court of Cassation dismissed this objection on the basis of the new classification of the acts. It indicated that this result could not be considered as reformatio in pejus, inasmuch as the prison sentence imposed by the lower court was not increased.
The European Court found that whilst domestic courts may reclassify the acts which they have to judge, in this case the applicant was neither warned of the possibility of reclassification nor given the possibility to contest the new accusation by adversarial argument. The Court also noted that it was plausible to argue that the applicant’s defence would have been different had he known of the new accusation. The Court did not endorse the opinion according to which the modification of the accusation had had no effect on the determination of the conviction imposed on the applicant.
Individual measures: The applicant was sentenced to three years and eight months of imprisonment, of which he served seven months and one day. Subsequently, as from 6/09/2004, the applicant's prison sentence was commuted to probation under the supervision of a social service (affidamento in prova al servizio sociale), the remaining sentence to be served being less than two years.
The applicant made no request for just satisfaction. The European Court considered that a retrial or a reopening of the case, if requested, represented in principle an appropriate way of redressing the violation.

Following the European Court’s judgment, the applicant asked the Venice Court of Appeal to declare its judgment of 12/06/2002 non-enforceable under Article 670 of the Code of Criminal Procedure. By applying the case-law of the Court of Cassation (judgments Nos. 3600, Dorigo and 2432, Somogyi), the Court of Appeal recognised its judgment as non-enforceable as far as the part relating to corruption was concerned and sent to the Court of Cassation the applicant’s original appeal against its judgment so that it might give effect to the European court’s judgment. According to the Court of Appeal, the Court of Cassation being the jurisdiction before which the proceedings was unfair, it was also the better placed to identify the most appropriate means by which to declare the corruption crime time-barred – a declaration it ought to have given when first it considered the original appeal.
In its judgment of 11/12/2008, the Court of Cassation considered that, in the present case, the restitutio in integrum must be confined to setting aside the part of its judgment which did not respect the principle of adversarial argument, that is the part in which the court itself decided to reclassify the acts the applicant allegedly committed from “simple corruption” to “corruption in judicial acts”. The Court of Cassation considered Article 625bis of the Code of Criminal Procedure to be the most appropriate instrument for achieving this result. This article, which provides a special appeal to remedy factual errors in judgments of the Court of Cassation, may also be applied analogia legis to breaches of the right to defence before this Court, thereby allowing removal of the part of the judgment called into question. Therefore, the Court of Cassation annulled its own judgment of 4/02/2004 only as far as the offence of corruption defined as corruption in judicial acts is concerned and ordered a new examination of the applicant’s appeal before the Court of Cassation against the judgment of 12/06/2002 of the Venice Court of Appeal. It is expected that, in the new proceedings, the Court of Cassation will take into account the Convention’s requirements on fairness of proceedings.
General measures:
1) Reclassification of offences without applying the principle of adversarial argument:
According to the government, no legislative change was necessary since the violation stem from the Court of Cassation’s jurisprudential interpretation of the general principles on the matter. A new jurisprudential interpretation was therefore necessary to ensure compliance with the European Court’s judgment.
The recent case-law of the Court of Cassation has provided such interpretation. In its judgment of 11/12/2008, this Court acknowledged that the decision of the European Court had the effect of enlarging the scope of application of the principle of adversarial argument in the national legal order. It follows from the European Court’s judgment, read in the light of Article 111 of the Italian Constitution, that from now on this principle applies to every stage of proceedings, including when the Court of Cassation is checking the compliance of a judgment with the law where a modification ex officio of the accusation has had effect on the determination sentence.
2) Reopening proceedings following the finding of a violation: In its judgment of 11/12/2008, the Court of Cassation considered that in cases like the present one, the judgment of the European Court did not call into question the decision on the merits, merely the Court of Cassation’s judgment which was unfair on account of a lacuna in the legal system (failure to apply the adversarial principle). Therefore, the revision of the decision on the merits is not necessary and the application analogia legis of Article 625bis of the Code of Criminal Procedure is sufficient to fill the legal lacuna in similar cases.
In order to prevent future similar violations, the judgment of the European Court has been sent out to the competent authorities and published on the internet sites of the Ministry of Justice (http://www.giustizia.it/pol_internaz/tutela/tutela_du_indice.htm) and of the Court of Cassation(http///www.cortedicassazione.it/Notizie/giurisprudenzaComunitaria/CorteEuropea/CorteEuropea.asp), as well as in the database of the Court of Cassation on the case-law of the European Court of Human Rights (www.italgiure.giustizia.it). This website is widely used by all those who practice law in Italy: civil servants, lawyers, prosecutors and judges alike.

The Deputies decided to resume consideration of this item at the latest at their 1065th meeting (15-16 September 2009) (DH), in the light of a draft final resolution to be prepared by the Secretariat.

- 1 case against Latvia

65022/01 Zaicevs, judgment of 31/07/2007, final on 31/10/2007
The case concerns the violation of the applicant’s right of appeal in criminal matters, in that in 2000 he was sentenced to three days’ administrative detention for contempt of court by a final order without possibility of appeal under Article 279§2 of the Administrative Offences Code in effect at the time (violation of Article 2 of Protocol No. 7).
Individual measures: The applicant is no longer detained and the European Court awarded him just satisfaction in respect of non-pecuniary damage.
General measures: On 20/06/2002, the Latvian Constitutional Court found the second paragraph of Article 279 of the Administrative Offences Code to be contrary, among other things, to Article 2 of Protocol No. 7, and declared it null and void.

The Deputies decided to resume consideration of this item at their 1065th meeting (15-16 September 2009) (DH), in the light of a draft final resolution, to be drafted by the Secretariat.

- 1 case against Lithuania

      - Case concerning the violation of the right to a fair hearing on account on criminal conviction for corruption following active incitement by state agents

74420/01 Ramanauskas, judgment of 05/02/2008 – Grand Chamber
The case concerns the violation of the applicant’s right to a fair hearing; in 2000 the applicant, a prosecutor, was found guilty of bribery following active incitement by state agents (violation of Article 6§1).
At appeal on points of law, the Supreme Court found that the evidence corroborated the applicant's guilt, which he himself had acknowledged. Thus, the Supreme Court held that once his guilt had been established, the question of whether the commission of the offence had been procured had no consequence with regard to the legal definition of the offence.
The European Court found that the actions of the state agents had gone beyond the mere passive investigation of existing criminal activity: there was no evidence that the applicant had committed any offences before, in particular corruption-related offences. All the meetings between the applicant and the agents took place at their initiative and the applicant seemed to have been subjected to blatant pressure on their part to commit a criminal act whereas there was no objective reason to suppose that he intended to do so (§§67-68 of the judgment).
The European Court further indicated that the domestic authorities and courts should at the very least have undertaken a thorough examination into “incitement”, as maintained by the applicant throughout the proceedings. They should have established in particular the reasons why the operation had been engaged, the extent of the police's involvement in the offence and the nature of any incitement or pressure. The applicant should have had the opportunity to state his case on each of those points and the courts should have made all necessary efforts to hear the state agents as witnesses (§71 of the judgment).
The European Court concluded therefore that the agents’ actions had had the effect of inciting the applicant to commit the offence concerned and that there was no indication that the applicant would have committed it without their intervention (§73 of the judgment).
Individual measures: In January 2002 the applicant was released on probation and in July 2002 the prohibition on his working in the judiciary was lifted. Furthermore, in January 2003, his conviction was expunged (§§28-29 of the judgment). The European Court awarded him just satisfaction in respect of pecuniary and non-pecuniary damage sustained.
By its decision of 16/12/2008, the Supreme Court quashed the judgment of Kaunas Regional Court of 29/08/2000 concerning the conviction of the applicant, the decision of the Court of Appeal of 26/10/2000 and the decision of the Supreme Court of 27/02/2001 and discontinued the reopened criminal case.

General measures: In its decision of 16/12/2008 (see above) the Supreme Court set out the general principles with regard to cases where the criminal conduct simulation model is employed. First, the criminal conduct simulation model may be applied only if credible and objective information had already been obtained to the effect that the criminal activity had been initiated. Secondly, state officials may not act as private persons to incite third parties to commit an offence, while the act of private persons acting to incite third parties to commit an offence under the control and instructions of state officials shall constitute such an incitement. Thirdly, it may be inferred that there is an act of incitement even if state officials do not act in a very intensive and pressing manner, including in situations when contact with third parties is made indirectly through mediators. Fourthly, the burden of proof lies with the state authorities in judicial proceedings. Fifthly, once the act of incitement is established, no evidence obtained through incitement of third parties shall be admissible. Sixthly, it is advised that the legal framework governing the use of undercover techniques is subject to the supervision of domestic courts.
The judgment of the European Court was translated into Lithuanian and placed on the website of the Ministry of Justice together with an explanatory note with information about the judgment. The Government Agent informed all relevant institutions and domestic courts about the judgment and sent it to them with an explanatory note.

The Deputies decided to resume consideration of this case at their 1065th meeting (15-16 September 2009) (DH), in the light of a draft final resolution to be prepared by the Secretariat.

- 1 case against Moldova

45701/99 Metropolitan Church of Bessarabia and others, judgment of 13/12/01, final on 27/03/02 - Interim Resolution ResDH(2006)126
CM/Inf/DH(2008)47 revised

- 2 cases against the Netherlands

38258/03 Van Vondel, judgment of 25/10/2007, final on 25/01/2008
This case concerns a breach of the right to respect for the private life and correspondence of the applicant, a police officer, due to the unlawful interception of certain of his telephone conversations by a private individual with the assistance of the police (violation of Article 8).
In January 1996 criminal proceedings were instituted against the applicant for perjury concerning statements he had made under oath before a parliamentary inquiry in October 1995. In addition to the parliamentary inquiry, a special team of the National Criminal Investigation Department (Rijksrecherche) conducted, in 1995, an internal fact-finding inquiry into the operation methods of the Regional Criminal Intelligence Service, for which the applicant had worked between 1989 and 1994. In the course of this fact-finding inquiry covert recordings of telephone conversations between Mr R. and the applicant were made, parts of which were used, inter alia, as evidence in criminal proceedings. On 5/03/2002 the Court of Appeal convicted the applicant of perjury before the parliamentary inquiry and of having repeatedly sought to intimidate the (potential) witness Mr R. It sentenced him to three months’ imprisonment, suspended for two years.
The European Court considered that although the recordings had been made voluntarily by and on the initiative of the individual concerned, the equipment had been provided by the authorities, who had on at least one occasion given him specific instructions as to what information should be obtained from the applicant. The Court noted that the police were conducting an internal inquiry with a view to establishing the facts concerning certain methods of investigation and that in this specific context they were not authorised by law to use certain investigatory powers such as the covert recording of (telephone) conversations.
Individual measures: The applicant submitted no claim for just satisfaction. On 10/02/2009 the Supreme Court reduced his conditional term of imprisonment to two months in revised proceedings following the European Court’s judgment. The recordings and transcripts of the telephone conversations are no longer in the applicant’s case file.

General measures: The case presents similarities to that of M.M. (see Final Resolution CM/ResDH(2007)130, adopted on 31/10/2007), which also concerned unlawful telephone interceptions by a private individual with the assistance of the police, but in the context of a criminal investigation. As the incident in the present case was an isolated one, the Dutch authorities do not find it necessary to amend the existing law or to create a special legal basis for taping and recording of telephone conversations in a fact-finding enquiry.
Given the direct effect of the European Court’s judgments in the Netherlands, all courts and authorities concerned are expected to align their practice to the Convention’s requirements under Article 8 as they emerge from the present judgment and also to respect strictly the conditions set forth by the Netherlands legislation on interception of telephone conversations. For this purpose, the Court’s judgment was published in various legal journals (European Human Rights Cases, 2007/145, pp.1413-17; Rechtspraak van de Week, 2008/93, p.56; Nederlands Juristenblad, 2007, p. 2171), was sent out to courts, and was mentioned in the book Actualiteiten Zakboek Strafvordering voor de opsporingsambtenaar (2008). It will also be mentioned in a new print of the manual on special criminal investigations (Handboek bijzondere opsporingsbevoegdheden) which is used in the training of police officers.

The Deputies decided to resume consideration of this item at their 1065th meeting (15-16 September 2009) (DH), in the light of a draft final resolution to be prepared by the Secretariat.

52391/99 Ramsahai and others, judgment of 15//05/2007 - Grand Chamber
The case concerns the failure by the respondent state in its obligation to conduct an effective investigation into the killing of Moravia Ramsahai, son and grandson respectively of the applicants (violation of Article 2). The victim was shot and killed by an officer of the Amsterdam/Amstelland Police Force on 19/07/1998, after he had drawn, and had begun to raise, a pistol towards two police officers present at the scene.
The European Court found that the fatal shot fired by the police officer in question was “no more than absolutely necessary” (§288 of the judgment), however, the subsequent investigation into the incident was inadequate and insufficiently independent.
It considered the investigation inadequate because the two police officers’ hands were not tested for gunshot residue, no reconstruction of the incident was staged, the weapons and ammunition of the officers were not examined, and no pictorial record of the trauma caused to the victim’s body by the bullet was made. In addition, the two officers were not kept separated after the incident and were not questioned until nearly three days later. According to the Court, the mere fact that appropriate steps were not taken to reduce the risk of collusion between the two or with other colleagues, amounted to a significant shortcoming in the adequacy of the investigation.
The Court considered the investigation lacked sufficient independence because the independent State Criminal Investigation Department only became involved in the investigation 15½ hours after the incident had taken place. In the meantime, essential parts of the investigation, namely the forensic examination of the scene, the door-to-door search for witnesses and the initial questioning of witnesses, including police officers, were carried out by the Amsterdam/Amstelland Police Force, to which the officers involved (and some of the witnesses questioned) belonged.
Individual measures: The European Court awarded just satisfaction in respect of non-pecuniary damage sustained. Based on the documentary evidence of the national authorities and of other sources, the Chamber established the facts surrounding the death of Moravia Ramsahai, which were not challenged before the Grand Chamber. In its assessment of those facts the Court concluded that the force used by the police officer in question was “no more than absolutely necessary”. Thus, a new domestic reopening of the proceedings is not likely to lead to any other conclusion.
General measures: The judgment was published in two legal journals in the Netherlands (NJB 2007/27 pp 1678-1679 and AB 2007/77).
1) Lack of independence of the investigation: according to the European Court’s judgment (§259), the duty system of the State Criminal Investigation Department was improved following a decision of the Amsterdam Court of Appeal of 23/06/2004, so that they could be at the place of the incident sooner. As a consequence, the State Criminal Investigation Department today reaches the scene of events on average within an hour or an hour and a half after an incident is reported.

In addition, on 26/07/2006, following the Chamber judgment in this case, the Board of Prosecutors General issued a new Instruction on how to act in the event of the use of force by a (police) officer. This Instruction applies to all officials exercising police powers and covers situations involving allegations of violations of Articles 2 and 3 of the Convention. Whenever an incident has taken place to which the Instruction applies, the investigation will be carried out by the State Criminal Investigation Department. The regional police force is to inform that department of the incident immediately. The duty officer of the State Criminal Investigation Department will proceed to the scene of the incident as quickly as possible. The local police are to take any necessary urgent measures, such as cordoning off the area concerned, caring for any casualties and taking down the names of any witnesses. They are not themselves to carry out any investigations unless and to the extent that their involvement is unavoidable. Any investigations that cannot be carried out by the State Criminal Investigation Department itself are done by the Internal Investigations Bureau of the police region concerned or by members of a neighbouring police force (§§260-264 of the judgment).
2) Inadequacy of the investigation: The instruction of the Board of Prosecutors General mentioned above includes provisions (Articles 17 and 19) for the steps to be undertaken following casualties occasioned by the use of firearms by (police) officers. These comprise the immediate reporting by the officer to his/her superior who records the matter, and the duty of the chief of police to report within 48 hours to the public prosecutor. The superior shall inform the officer concerned of action taken concerning his/her report.
In addition, the quicker involvement of the State Criminal Investigation Department will avoid any collusion.

The Deputies decided to resume consideration of this item at their 1065th meeting (15-16 September 2009) (DH), in the light of a draft final resolution to be prepared by the Secretariat.

- 3 cases against Romania

35671/97 Lindner and Hammermayer, judgment of 06/04/2006 - Grand Chamber - Friendly settlement7
31549/96 Popovici and Dumitrescu, judgment of 06/04/2006 - Grand Chamber - Friendly settlement
30324/96 Smoleanu, judgment of 06/04/2006 - Grand Chamber - Friendly settlement

- 2 cases against Serbia

    - Cases concerning freedom of expression

27935/05 Filipović, judgment of 20/11/2007, final on 20/02/2008
13909/05 Lepojić, judgment of 06/11/2007, final on 31/03/2008
These cases concern unjustified interference with freedom of expression of the applicants, both local politicians, who were convicted of criminal defamation or insult and subsequently ordered in civil proceedings to pay substantial damages to the same plaintiff, a local mayor who was also the director of a state-owned company (violations of Article 10).
In the case of Lepojić, the applicant was sentenced to suspended fine for criminal defamation in relation to his article, written in the run-up to the 2002 elections, alleging that the mayor had spent public funds on sponsorships and gala luncheons in a “near-insane“ manner.
In the case of Filipović, the applicant alleged in 2001, at a meeting attended by the Deputy Prime Minister, that the mayor might have been involved in embezzlement and tax evasion, in the absence of any conviction to that effect.
Both applicants were subsequently the object of civil proceedings, founded on the criminal verdicts against them, in which they were ordered to pay damages.
The European Court noted in both cases that although the applicants' statements contained some strong language and serious allegations, they were not “gratuitous personal attacks“ directed against the mayor and that the applicants clearly had legitimate reason to believe that the mayor might have been involved in the activities alleged (§77 and §58 of the Lepojić and Filipović judgments respectively).
The European Court noted in the Lepojić judgment that "bearing in mind the seriousness of the criminal sanctions involved, as well as the domestic courts' dubious reasoning to the effect that the honour, reputation and dignity of the Mayor had more significance than ... [the honour, reputation and dignity] ... of an ordinary citizen" the interference in question "was not necessary in a democratic society" (§78 of the judgment).
Individual measures: In the Lepojić case, the European Court awarded the applicant just satisfaction in respect of non-pecuniary damage.
• Information provided by the Serbian authorities (letter of 06/08/2008): On 31/07/2008, the Municipal Court of Babušnica ordered the deletion of the applicant’s conditional conviction from his criminal records.
In the Filipović case, the European Court dismissed the applicant’s claim for just satisfaction, which was submitted out of time. His criminal conviction for insult was not considered, rationae temporis. Nevertheless, the Serbian authorities indicated by letter of 06/08/2008 that on 16/11/2007, the Ministry of Interior, Police Department of Pirot, erased the applicant’s conviction from his criminal record.
General measures:
• Information provided by the Serbian authorities (26/03/2008, 17/04/2008, 20/05/2008, 02/12/2008, 13/01/2009 and 20/01/2009):
On 25/11/2008 the Serbian Supreme Court adopted a legal position allowing the direct application of the case-law of the European Court in the particular context of the present cases. According to this legal position, the degree of acceptable criticism is much wider for public figures than private individuals. The legal position is binding for all lower courts in the country. The Serbian authorities also provided a copy of a judgment rendered by the District Court of Valjevo on 12/08/2008 in an unrelated case. Referring to Article 10 of the European Convention, this judgment states that the holders of public offices had to accept any criticism expressed on their account, even if such criticism exceeds the limits of customary decency.
The European Court’s judgments were published in the Official Gazette of the Republic of Serbia, Nos. 111 of 04/12/2007 and 114 of 08/12/2007 respectively, as well as on the website of the Government Agent (www.zastupnik.sr.gov.yu). The Agent forwarded the judgments with a note to the Ministry of Justice, the Supreme Court, the District Court of Pirot and Municipal Court of Babušnica. In addition, he published his comments on these judgments in the Paragraf legal journal and in the leading Serbian daily Politika on 22/11/2007. The judgments were also included in a book published by the Office of the Government Agent.

The Deputies decided to resume consideration of this item at their 1065th meeting (15-16 September 2009) (DH), in the light of a draft final resolution, to be drafted by the Secretariat.

- 2 cases against Switzerland

61697/00 Meloni, judgment of 10/04/2008, final on 10/07/2008
This case concerns the illegal detention of the applicant from 09/05/2000 to 12/05/2000 and again from 12/05/2000 to 19/07/2000 without any decision “by legal means” (violations of Article 5§1). The initial detention was based on a valid arrest warrant, duly extended to 08/05/2000. On 12/05/2000, the competent court (Verfahrensgericht) dismissed the applicant’s request for release. The Federal Court relied on this dismissal as valid grounds for extending the detention.
The European Court took the opposing view: the decision of 12/05/2000 could under no circumstances be held to extend retroactively a deadline already expired four days before, not least since the law unambiguously requires the competent judge to pronounce before the expiry of an extension.
Individual measures: The applicant is no longer held on remand. He was convicted and given a custodial sentence from which the time spent on remand was deducted (§§29-30 of the judgment).
Concerning pecuniary damage, the European Court considered that the applicant had not made out a sufficiently clear case that he had lost earnings in consequence of the detention found to be unlawful by the Court. On the other hand, it granted him just satisfaction in respect of the non-pecuniary damage he had sustained as a result of the violation, as well as costs and expenses.
General measures: The violation was due to a mistaken application of the law applicable in the canton. The Code of Criminal Procedure in force at the material time in the Canton of Basel-Country (§32 of the judgment) contained different provisions for, respectively, requests for release and appeal against dismissal (Article 85) and the procedure for extending detention on remand (Article 86).

The European Court found that the decision of 12/05/2000 at issue (dismissal of the request for release) did not dispense the authorities from their obligation to extend the remand “by legal means”, i.e. by issuing a formal detention order as required by Article 5§1 of the Convention (§51). The decision at issue failed in particular to indicate the “necessary” length of the extension as required by Article 86 of the Code, such indication being an essential requirement to avoid arbitrary detention in the sense of Article 5§1 of the Convention. The European Court also pointed out that the fact that, as in the present case, an applicant expressly waives the automatic verification of the lawfulness of his detention in no way discharges the competent authorities from their responsibility to extend detention “by legal means”.
Following the European Court’s judgment, and in accordance with their systematic practice, the authorities have published and disseminated it to the competent authorities. The judgment was among those presented in the quarterly bulletin of the Federal Ministry of Justice (Office fédéral de la justice) on the European Court’s case-law, issue No. 2 of 2008 (www.bj.admin.ch/bj/fr/home/themen/staat_und_buerger/menschenrechte2.html, section “Convention européenne “). These quarterly bulletins are sent out to all the Federal authorities concerned (Federal Tribunal, Administrative Federal Tribunal, Criminal Federal Tribunal, Office of the Parliament), as well as to all cantonal judicial authorities (in particular Courts of appeal and justice Departments). A summary of the judgment was published in the Annual Report of the Federal Council on the activities of Switzerland within the Council of Europe in 2008. The authorities informed of the judgment, in particular courts, apply the Convention directly and are thus able to avoid new, similar violations, by applying the relevant national provisions.
To give a compete picture of the situation, it could be added that the said provisions have been modified. First, the Code of Criminal Procedure of the Basel-Country Canton (concerned in this case) was modified on 22/05/2003; with effect from 01/04/2004. The revised Article 86§2 authorises extension of detention on remand up to 6 months in special circumstances (In besonderen Fällen). Secondly, the new Swiss Code of Criminal Procedure was adopted on 5/10/2007 and will enter into force on 1/01/2011. This Code and the Federal law on criminal procedure for minors will replace the existing 26 cantonal codes of criminal procedure and the federal law on criminal procedure. The new code is available on the Internet site of the Federal authorities of the Swiss Confederation (http://www.admin.ch/ch/f/ff/2007/6583.pdf). Articles 224 ff. concern detention on remand. In particular, Article 227 provides for the procedure for extending detention on remand (it deals among other things with the length of extension).

The Deputies decided to resume consideration of this item at their 1065th meeting (15-16 September 2009) (DH), in the light of a draft final resolution to be prepared by the Secretariat.

35865/04 Foglia, judgment of 13/12/2007, final on 13/03/2008
This case concerns a violation of the applicant's right to freedom of expression (violation of Article 10). Practicing as a lawyer, he was convicted by a disciplinary fine in 2003 on grounds of declarations made in the press and on the television, in relation to a criminal case in which he represented civil parties. Inter alia, he had described the investigation as “superficial and hasty”. The conviction in question had been decided by the Disciplinary Commission of the lawyers Bar Association and confirmed by the courts to which he had appealed.
This conviction was prescribed by Swiss law and had a legitimate aim maintaining the authority and impartiality of the judiciary. However, it was not necessary in a democratic society. Indeed, the European Court does not share the national authorities' opinion that, in view of the declarations he made and given that he allegedly transmitted certain documents from the trial to journalists (which was not proven), he was responsible for a press campaign and lead “media proceedings” parallel to the judicial proceedings, with a view to influencing the courts involved in the case. The European Court also held, among others, that the comments made by the applicant had been neither excessive nor offensive. Finally, it underlined that although the fine imposed on the applicant had in itself been modest (around 1024 euros), it was nonetheless symbolic in value.
Individual measures: The European Court granted the applicant, as a just satisfaction in respect of the pecuniary damage sustained, a sum equal to the fine paid following his conviction. He did not allege that he had suffered any non-pecuniary damage. It appears from the judgment that the applicant is still a practicing lawyer.
Since the applicant did not request revision of the Federal Tribunal’s judgment, his conviction became final. In this respect, it is recalled that Article 122 of the Federal Tribunal Law provides the possibility of such revision following a judgment of the European Court.

General measures: The violation found stems from the application of national law in this specific case. Concerning the principles to follow in this field, the European Court, among others, recalled that although lawyers had the right to comment publicly on the administration of justice, their criticism could not overstep certain bounds. In that connection, account must be taken of the need to strike the right balance between the various interests involved, which include the public's right to receive information about questions arising from judicial decisions, the requirements of the proper administration of justice and the dignity of the legal profession. The European Court also recalled that the margin of appreciation in assessing the necessity of an interference in this area is not “wide”. Furthermore, the Court said the impugned interference must be looked at in the light of the case as a whole, including in this case the content of the remarks held against the applicant and the context in which she made them.
Following the European Court's judgment, and in accordance with their systematic practice, the authorities have published and disseminated it to the competent authorities. The judgment was transmitted to the Canton concerned on 19/12/2007, the Canton Chancellery to distribute it to the authorities concerned, including the Disciplinary Commission of the Bar Association. It was also transmitted the same day to the Federal Tribunal. Furthermore, the judgment was presented in the quarterly bulletin of the Federal Ministry of Justice (Office fédéral de la justice) on the European Court's case-law, issue No. 1 of 2008 (www.bj.admin.ch/bj/fr/home/themen/staat_und_buerger/menschenrechte2.html, section “Convention européenne”). These quarterly bulletins are sent out to all the Federal authorities concerned (Federal Tribunal, Administrative Federal Tribunal, Criminal Federal Tribunal, Office of the Parliament), as well as to all Cantons' judicial authorities (in particular Courts of appeal and justice Departments). A summary of the judgment was published in the Annual Report of the Federal Council on the activities of Switzerland within the Council of Europe in 2007 (http://www.admin.ch/ch/f/ff/2008/4045.pdf, page 4055). The authorities informed of the judgment, in particular courts, apply the Convention directly and are in a position to avoid new violations, similar to that found in the present case.

The Deputies decided to resume consideration of this item at their 1065th meeting (15-16 September 2009) (DH), in the light of a draft final resolution to be prepared by the Secretariat.

- 2 cases against United Kingdom

*11002/05 Associated Society of Locomotive Engineers and Firemen (ASLEF), judgment of 27/02/2007, final on 27/05/2007
This case concerns an independent trade union’s being prevented, under section 174 of the Trade Union and Labour Relations (Consolidation) Act 1992, from expelling a member due to his membership of a political party advocating views radically incompatible with those of the trade union (violation of Article 11). In such cases, trade unions would face the following sanctions: payment of compensation to the member as ordered by an employment tribunal upon application by the member; and payment of compensation to the member in the event of the trade union’s failure to readmit him to the membership of the union.
The European Court noted that just as an employee or worker should be free to join, or not to join, a trade union without being sanctioned, so should the trade union be equally free to choose its members (§39). The European Court noted that the member in question would not have suffered any identifiable hardship because of the expulsion (§ 52). It also noted trade unions’ traditional political ideals. The European Court concluded that in this case, the state had not struck the proper balance between the rights of the member in question and those of the applicant trade union (§§ 51 and 52).
Individual measures: The European Court indicated that following the domestic decision, the applicant trade union was forced to re-admit the member in question to membership of the union, against its own Rules.
The Human Rights Act does not allow judges to override domestic legislation which is incompatible with the European Convention if it is impossible to interpret the law in a manner which complies with the Convention. Given the wording of section 174 of the Trade Union and Labour Relations (Consolidation) Act 1992, the authorities of the United Kingdom consider that it would be very difficult for a court to use section 3 of the Human Rights Act to construe section 174 in such a way that allowed unions to expel or exclude members on grounds of political party membership. They therefore consider that the issue of individual measures required in this case is to be linked to the legislative changes (see below).
The applicant trade union may now reassess the situation of the member in question on the basis of the legislative changes set out below.

General measures:
1) Amendment of the Trade Union and Labour Relations (Consolidation) Act 1992: The government undertook to amend section 174 and related provisions of the 1992 Act.
The requisite amendments were made by way of the Employment Act 2008, which received Royal Assent on 13/11/2008. The Act may be found at http://www.opsi.gov.uk/acts2008/pdf/ukpga_20080024_en.pdf. The Explanatory Notes to the Act indicate that section 19 amends trade union membership law to ensure UK compliance with the ruling of the European Court on the present case.
Section 19 of the Act amends section 174 of the Trade Union and Labour Relations (Consolidation) Act 1992 to permit the expulsion of an individual from a trade union on grounds of their membership of a political party, if membership of that political party is contrary to a rule or an objective (provided the objective is reasonably practicable to ascertain) of the trade union; the decision to expel is taken fairly and in accordance with union rules; and the individual does not lose his livelihood or suffer other exceptional hardship by reason of not being or ceasing to be a member of the trade union.
Section 19 of the Employment Act 2008 entered into force on 06/04/2009 (the Employment Act 2008 (Commencement No. 2, Transitional Provisions and Savings) Order 2009 (S.I. 2009/603)). Section 19 applies to trade union decisions taken on or after 06/04/2009. A copy of the order may be found at: http://www.opsi.gov.uk/si/2009/pdf/uksi_20090603_en.pdf.
2) Publication and dissemination: The judgment has been published in the Industrial Relations Law Reports [2007] IRLR 361, The Times Law Reports (2007) 09/03/2007, Butterworths Human Rights Cases 22 BHRC 140, and All England Reports [2007] All ER (D) 348 (February).
Details of the judgment were circulated within government by the Human Rights Information Circular prepared by Ministry of Justice lawyers: a report on the case featured in the first circular of 2007.

The Deputies decided to resume consideration of this item at their 1065th meeting (15-16 September 2009) (DH), in the light of a draft final resolution to be prepared by the Secretariat.

25599/94 A., judgment of 23/09/98
Interim Resolution ResDH(2004)39
CM/Inf/DH(2005)8, CM/Inf/DH(2006)29 and CM/Inf/DH(2008)34
The case concerns the failure of the state to protect the applicant, at the time a nine-rear-old child, from ill-treatment by his step-father, who was acquitted of criminal charges brought against him after he raised the defence of reasonable chastisement (violation of Article 3).
Individual Measures: The European Court awarded the applicant just satisfaction in respect of non-pecuniary damage. The applicant has reached majority.
General Measures: It should be recalled that the European Court considered that the law in force did not provide adequate protection to the applicant against punishment or treatment contrary to Article 3, and that children and other vulnerable individuals are entitled to state protection, in the form of effective deterrence, against such serious breaches of personal integrity. It did not determine that all physical punishment of children is contrary to Article 3. Applying its standard test under Article 3 to the facts of the case, it found that “treatment of this kind reaches the level of severity prohibited by Article 3”.
1) Legislative reform: The United Kingdom has chosen to implement the judgment by amending the relevant legislation in all its jurisdictions.
a) England and Wales: Through section 58 of the Children Act 2004, the defence of “reasonable chastisement” has been removed and replaced with one of “reasonable punishment”. This defence has been limited to cases of conduct charged summarily as “common assault”, i.e. cases where the injury suffered is transient or trifling. The defence may no longer be invoked in cases where the physical punishment is such as to amount to assault occasioning actual bodily harm to children, cruelty or more serious assault offences.
b) Northern Ireland: Legislative provisions mirroring those of England and Wales were introduced in Northern Ireland by the Law Reform (Miscellaneous Provisions) (Northern Ireland) Order 2006, which came into force in September 2006.

c) Scotland: The Criminal Justice (Scotland) Act 2003, Section 51 lays down the conditions in which an assault on a child may be “justifiable”. The court must apply a specific test when determining whether the punishment was reasonable (or “justifiable assault”).
Section 51§1 and 51§2 list the factors which the court must take into consideration when determining whether the punishment can be considered a “justifiable assault”, namely: the nature of what was done, the reason for it and the circumstances in which it took place; its duration and frequency; any effect (whether physical or mental) which it has been shown to have had on the child; the child’s age; the child’s personal characteristics (including sex and state of health) at the time the thing was done; and such other factors as it considers appropriate in the circumstances of the case. Those criteria – for example the nature of what was done, the circumstances in which it took place, any effect (whether physical or mental) – reflect the criteria that the European Court has set out in its case-law to assess whether ill-treatment falls within the scope of Article 3.
The law is different from that in England, Wales and Northern Ireland due to the fact that Scotland is a separate jurisdiction for the purposes of criminal law. There are therefore some technical differences between the Scottish legal system and the other United Kingdom jurisdictions. However, in principle the Scottish law reflects the same approach with the same structure as that in the other parts of the United Kingdom and has a similar effect in practice.
A detailed presentation of the legislative changes adopted may be found in Information Document CM/Inf/DH(2008)34, together with a summary of the other information examined by the Committee (Crown Prosecution Service (CPS) report, government consultation, concerns of NGOs and representatives from civil society).
Proceedings were brought by the Northern Ireland Commissioner for Children and Young People challenging the compatibility of the new legislative provisions in Northern Ireland with the Convention. In its judgment of 20/02/2009, the Court of Appeal dismissed the claim on the ground that the Commissioner was not a “victim” and therefore had no standing to bring the proceedings. The Court of Appeal did not consider any of the substantive arguments put forward by the Commissioner. In a press release dated 21.04.09, the Commissioner stated that she will not pursue further legal action.
2) Awareness raising measures: The United Kingdom has also taken awareness raising measures, summarised in Information Document CM/Inf/DH(2008)34 (§20-21, §48, §56-57). Such measures were considered important to clarify the law for non-lawyers, parents and childcare professionals, given the vulnerable status of those potentially affected by the legislation. Additional resources have also been allocated in the United Kingdom for parenting support, as set out in the memorandum (§70).
The legislative changes adopted are in principle in conformity with the requirements of the Convention and in the flexible, common law system of the United Kingdom, should prevent similar violations. They will also permit a continuous and rapid response to developments in the Article 3 case-law of the European Court, supported by awareness-raising and additional spending which will continue at the national level. In this respect it may also be noted that should the European Court take a different view of the minimum level of gravity to be taken into account with regard to treatment of children in future, the United Kingdom domestic courts will be obliged to take this into account under the Human Rights Act 1998.

The Deputies decided to resume consideration of this item at their 1065th meeting (15-16 September 2009) (DH) in light of a draft final resolution to be prepared by the Secretariat.

1 Those items marked with an asterisk * were added after approval of the draft Agenda (Preliminary list of items for consideration at the 1059th meeting) in accordance with the Rules adopted by the Committee of Ministers for the application of Article 46 of the European Convention on Human Rights.

2 The Deputies decided to postpone consideration of this case to the 1065th meeting (15-16 September 2009) (DH).

3 The Deputies decided to postpone consideration of this case to the 1065th meeting (15-16 September 2009) (DH).

4 The Deputies decided to postpone consideration of this case to the 1065th meeting (15-16 September 2009) (DH).

5 The Deputies decided to postpone consideration of this case to the 1065th meeting (15-16 September 2009) (DH).

6 The Deputies decided to postpone consideration of this case to the 1065th meeting (15-16 September 2009) (DH).

7 The Deputies decided to postpone consideration of these cases to the 1065th meeting (15-16 September 2009) (DH).


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