CEDH · PRESS;GENERAL;ENG — 24 septembre 2002

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s94935B0F { width:389.85pt; display:inline-block } .sBB9EE52A { font-family:Arial } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sA36B60A1 { font-family:Arial; font-style:italic } .s583D00FA { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sCB27B9E { width:16.66pt; display:inline-block } .s23A41E03 { width:36pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s3133A7C8 { font-family:Arial; color:#0069d6 }   EUROPEAN COURT OF HUMAN RIGHTS     448   24.9.2002   Press release issued by the Registrar   CHAMBER JUDGMENTS CONCERNING Finland and the United Kingdom,   The European Court of Human Rights has today notified in writing four Chamber judgments, none of which is final. [1]   Section 2   (1)     Nerva and others v. the United Kingdom (application no. 42295/98) No violation Article 1 Protocol No. 1 No violation Article 14 Sandro Nerva, an Italian national, and three Spanish nationals - José Pulleiro, Julio Rodriguez (now deceased) and José Gigirey-Cabo - were all waitors at the time of the events in question. The first two applicants are currently living in London and the fourth, in Spain.   The case concerned the use of tips left by customers for the applicants in the form of an addition to a cheque or credit card payment. Rather than distributing cash equivalent to the amounts left by the customers, the applicants’ employer included what was referred to as   “additional pay” in their weekly pay slip.   The applicants sued their employer for breach of contract because this additional pay had been counted towards the overall minimum wage they were legally entitled to receive during a six-year period prior to 6 March 1989. They maintained, among other things, that this additional pay was money was intended for them and held in trust for them by their employer which could not form part of their basic salary. They claimed they had in effect received less than the minimum wage during that period and were therefore entitled to damages.   On 25 May 1994 a High Court judge held that tips paid by credit card or cheque became the employer’s property and could be counted towards the payment of a minimum wage. The applicants appealed unsuccessfully.   The applicants alleged, in particular, that the decisions of the United Kingdom courts violated their rights under Article   1 of Protocol No. 1 (protection of property) to the European Convention on Human Rights and Article 14 (prohibition of discrimination). The European Court of Human Rights noted that it had not been disputed that the legal title to tips paid by customers using cheques or credit cards passed initially to the applicants’ employer. Tips paid in this manner became the property of the employer for the simple reason that the vouchers signed by customers were made out in the employer’s name and were cleared through the latter’s account. It had not been disputed either that the applicants received from their employer their share in the tips in accordance with the proportion agreed by the waiting staff. Accordingly, there was no interference with each applicant’s agreed right to an appropriate share of the tips. They each received, in the form of “additional pay”, what they would have received had the tips been paid in cash, minus the tax and national insurance contributions payable on the amounts received.   The applicants also received the additional pay speedily since, unlike their employer, they did not have to wait until the credit card or cheque payments had been processed. Payment of the gratuity was also guaranteed even if the credit card or cheque transaction turned out to be fraudulent.   The applicants were entitled to a minimum wage, and they had not disputed that their employer complied with its statutory obligations and, indeed, paid them more than the minimum entitlement, having regard to the additional pay which appeared in their wage slips.   The applicants could not maintain that they had a separate right to the tips and a separate right to minimum remuneration calculated without reference to those tips. Neither could they claim they had a legitimate expectation that the tips at issue would not count towards remuneration. Such a view assumed that the customer intended that this would not be the case.   In the opinion of the Court, it was for the applicants to come to a contractual arrangement with their employer as to how the tips at issue were to be dealt with from the point of view of their wage entitlement. However, they could not rely on Article 1 of Protocol No. 1 to base a claim to a higher level of earnings.   The Court held, by six votes to one, that there had been no breach of the applicants’ right under Article 1 of Protocol No. 1.   For the Court, the applicants had not established that either the applicable legislation or its interpretation by the domestic courts’ discriminated against them vis à vis employees in other sectors of employment covered by that legislation. Accordingly, the Court held, unanimously, that there had been no violation of the applicants’ rights under Article 14. (The judgment is available only in English.)     (2)     M.G. v. the United Kingdom (no. 39393/98)                                          Violation Article 8 M.G., a United Kingdom national, was born in 1960 and lives in Leicester. He was in local authority voluntary care from: 8   September   to 6 November 1961, 15 February to 20 July 1962, 26 October to 23 December 1962, 4 April 1963 to 4 April 1966 and 16 January to 8   April   1967. During these periods his mother was receiving periodic psychiatric treatment and his father had some difficulty coping with the children on his own. M.G. had contact with both parents while in care.   By letter dated 10 April 1995, the applicant requested access to his social service records. By letters dated 5 and 9 June 1995, he requested specific information including whether he had ever been on the “risk register”, whether his father had been investigated or convicted of crimes against children and about the responsibility of the local authority for abuse he had suffered as a child.   By letter dated 12 June 1996 to the local authority the applicant’s legal representatives noted that the applicant had been provided with summary information and certain documents. They requested that he be allowed full access to his file. In reply, the local authority indicated that the social service records had been created prior to the entry into force of the Access to Personal Files Act 1987. Further to the applicant’s queries, the local authority confirmed that there were no detailed records relating to him after 1967 and little mention of ill-treatment.   In his letter of 21 January 1997, the applicant stated that he was undergoing counselling for abuse he had received as a child and that he had consulted solicitors about a negligence action against the local authority. He requested specific information about allegations of ill-treatment made in November 1966 and about his being abused by his father for eight years thereafter. The local authority responded by letter dated 17   February 1997, referring the applicant to the information already provided in 1995 and to the differences between social work standards and procedures in 1997 and in the 1960s.   The applicant complained, in particular, about inadequate disclosure by the local authority of his social service records, records which related to his time spent in local authority care. He pointed out that he had not yet received all his social service records and referred, in particular, to the period from April 1967 - 1976 for which he has received no records whatsoever. He maintained that the failure to allow him unimpeded access to all social service records relating to him during those periods constituted a violation of Article 8 (right to respect for private and family life).   The Court noted that one of the main reasons the applicant sought access to his records was his sincere belief that he had been physically abused when he was a child by his father and his need to obtain as much information as possible about that period in order to come to terms with the emotional and psychological impact of any such abuse and to understand his own subsequent and related behaviour.   The Court observed that the applicant was only given limited access to his records in 1995, compared to the records submitted to the Court by the United Kingdom Government. In addition, he had no statutory right of access to those records or clear indication by way of a binding circular or legislation of the grounds upon which he could request access or challenge a denial of access. Most importantly, he had no appeal against a refusal of access to any independent body. The records disclosed by the Government demonstrated the need for such an independent appeal, given that significant portions of the records were blanked out and certain documents had been retained on the basis that non-disclosure was justified by the duty of confidence to third parties.   In such circumstances, the Court concluded that there had been a failure to fulfil the positive obligation to protect the applicant’s private and family life in respect of his access to his social service records from April 1995. However, from 1 March 2000 (the date of entry into force of the Data Protection Act 1998) the applicant could have, but had not, appealed to an independent authority against the non-disclosure of certain records on grounds of a duty of confidentiality to third parties. Accordingly, the Court held, unanimously, that there had been a violation of Article 8 in respect of the applicant’s access, between April 1995 and 1 March 2000, to his social service records. The applicant was awarded 4,000 euros (EUR) for non-pecuniary damage. (The judgment is available only in English.)   Section 4   (3)     Posti and Rahko v. Finland (no. 27824/95)                                      Violation Article 6 § 1 No Violation Article 1 Protocol No. 1 No Violation Article 14   Mauno Posti and Erkki Rahko, both Finnish nationals, are fishermen operating in State-owned waters in the coastal region of the Gulf of Bothnia under leases granted   by Finland in 1989 and renewed in 1995 (until 1999) and 2000 (for 2000-2004).   From 1986 onwards the Ministry of Agriculture and Forestry issued a number of decrees   imposing fishing restrictions to safeguard future fish stocks. In 1991 Mr Rahko and others challenged the lawfulness of Decree no. 684/91 which prohibited fishing with certain equipment in fishing waters leased by them. In its judgment of 14 June 1991 the Supreme Administrative Court declined to examine the merits of the appeal on the ground that it lacked jurisdiction.   By Decree no. 231/1994 (and later, Decree no. 258/1996, then Decree no. 266/1998), the Ministry prohibited salmon fishing with certain equipment during set periods of time in, among others, the fishing waters leased by the applicants.     In response to a petition lodged by the applicants and others the Parliamentary Ombudsman, on 25 November 1994, found no indication that the Ministry had acted incorrectly in issuing the 1994 Decree. In a further decision of 26 May 1995, he concluded that the restrictions in the 1994 Decree had been justified in order to safeguard fish stocks. Concerning complaints of discrimination, he found that restrictions had differed from area to area to take into account the spawning routes of the salmon. He therefore accepted that the difference in the timing of the prohibition and the differences in the fishing equipment prohibited were justified. He also considered, however, that the Ministry had not sufficiently taken into account the need for equal treatment of fishermen in different areas.   On 19 September 1996 the Lapland District for the Economic Development of the Countryside granted the applicants certain compensation for losses suffered as a result of the fishing prohibition imposed under the 1996 Decree.   The applicants’ current leases ending in 2004 stipulate that salmon fishing is allowed within the leased areas “in so far as prescribed in the ... Decree on Salmon Fishing or other provisions”.   The applicants complained, in particular, that fishing restrictions imposed and maintained by government decree had violated their right to the peaceful enjoyment of their possessions. They also complained that they had had no access to a tribunal, or any other effective remedy, in order to challenge the fishing restrictions and, that the fishing restrictions discriminated against them, as coastal fishermen, in comparison with fishermen operating in the open sea. They relied on Article 6 § 1 (access to court), Article 1 of Protocol No. 1, Article 13 (right to an effective remedy) and Article 14.   The European Court of Human Rights found that a genuine and serious dispute over the existence and scope of the applicants’ civil right to fish certain species within a clearly delineated area of State-owned waters might be said to have arisen as regards the period from 1995 to 1999, as a result of the 1996 and the 1998 decrees. Article 6 § 1 therefore applied in respect of this period. Finding that the applicants had no access to a court to determine the effect of these decrees on the contractual terms of their leases of 1995, the Court held, unanimously, that there had been a violation of Article 6 § 1. In the light of this finding, the Court also held, unanimously, that it was not necessary for it to consider whether there had been a violation of Article 13.   The Court observed that the applicants’ right to fish in State-owned waters on the basis of their 1995 leases constituted a “possession” and the limitation of that right through the 1996 and 1998 decrees amounted to a control of the use of those possessions. However, the Court found that the reason for the interference in the applicants’ property rights - the preservation of fish stocks - was lawful, proportionate, legitimate and in the general interest. Moreover, the interference did not completely extinguish the applicants’ right to fish salmon and salt-water trout in the relevant waters. The applicants also received compensation for losses suffered as a result of the fishing prohibition imposed by the 1996 Decree.   Accordingly, the Court held, unanimously, that there had been no violation of Article 1 of Protocol No. 1.   Concerning Article 14, the Court found no differential treatment to the detriment of the applicants in their exercise of their contractual right to fish salmon and whitefish on designated State-owned waters. Accordingly, it held, unanimously, that there had been no violation of Article 1 of Protocol No.   1, read in conjunction with Article 14.   The applicants were each awarded EUR 8,000 for non-pecuniary damage and, jointly, EUR 5,765 for costs and expenses. (The judgment is available only in English.)   (4)     Cuscani v. the United Kingdom (no. 32771/96)                               Violation Article 6 § 1 in conjunction with 6 § 3 (e) Santo Annino Tommaso Cuscani, an Italian national, is the former manager of “The Godfather Restaurant” in Newcastle upon Tyne. He was also the director of the company running the restaurant.   Following an inquiry by the Inland Revenue and Customs and Excise in 1988 into the restaurant and Mr Cuscani, the company went into liquidation and the restaurant lease was transferred to a new company controlled by the applicant. The restaurant was run by a succession of management companies which all failed to make any VAT payments or returns to the Customs and Excise authorities. In addition, wages were paid to employees in cash and were not declared to the Inland Revenue. The resulting loss of VAT was assessed at approximately 460,000 pounds sterling (GBP) and the accumulated losses in Income Tax and National Insurance contributions, at GBP 360,000. In September 1994 the applicant was declared bankrupt, as a result of civil proceedings brought by the Inland Revenue to recover unpaid tax, and, in November 1994, he was arrested and remanded in custody.     At his trial on 4 January 1996, the applicant pleaded guilty to charges of fraudulently evading VAT and cheating the public revenue.   At the hearing on sentencing on 26 January 1996 no professional interpreter was present, although the trial judge had earlier granted a request for an interpreter. The applicant’s counsel, without consulting his client, suggested the applicant’s brother could act as interpreter, and the court agreed, if need be. However, the applicant’s brother was never requested to translate any statement during the course of the hearing.   The applicant was sentenced to a total of four years’ imprisonment and disqualified from being a company director for ten years. He was refused leave to appeal.   On 3 September 1996 the applicant wrote to the Home Secretary, claiming that the real amount of the fraud was GBP   140,000 and not GBP 800,000. He also complained that he had had no interpreter during his trial and that his brother could not write or speak in English.   The case was sent to the Criminal Cases Review Commission, which concluded that there were grounds for finding that the plea was uninformed in that the applicant had not fully understood the nature of the case to which he was pleading, partly because of his inadequate understanding of the language, and because of the inadequate explanation of the case given to him by his legal representatives.   However, the Commission noted that the Court of Appeal no longer had the power to allow an appeal against conviction if it did not think the conviction was unsafe. In the view of the Commission, whilst the applicant’s conviction was arguably unsatisfactory, it could not be said to be unsafe. Since the Commission did not consider that there was a real possibility that, if referred to the Court of Appeal, the conviction and sentence would not be upheld, it decided not to make such reference.   The applicant was released from prison on licence on 25   November 1996.   The applicant alleged that he did not receive a fair trial on account of the absence of interpretation at his hearing on sentencing.   The Court observed that the applicant’s alleged lack of proficiency in English and his inability to understand the proceedings became a live issue for the first time when the trial court was informed that the applicant wished to plead guilty. In the Court’s opinion, the verification of the applicant’s need for interpretation facilities was a matter for the judge to determine in consultation with the applicant, especially since he had been alerted to counsel’s own difficulties in communicating with the applicant. It was to be noted that the applicant had pleaded guilty to serious charges and faced a heavy prison sentence. The onus was thus on the judge to reassure himself that the absence of an interpreter would not prejudice the applicant’s full involvement in a matter of crucial importance for him. In the circumstances, that requirement could not be said to have been satisfied by leaving it to the applicant, and without the judge having consulted the latter, to invoke the untested language skills of his brother.   It was true that the conduct of the defence was essentially a matter between the defendant and his counsel. However, the ultimate guardian of the fairness of the proceedings was the trial judge who had been clearly apprised of the real difficulties which the absence of interpretation might create for the applicant. The Court therefore held, unanimously, that there had been a violation of Article 6 § 1 taken in conjunction with Article 6 § 3(e) and that it was not necessary to consider the applicant’s other complaints. The applicant was awarded EUR 2,200 for cost and expenses. (The judgment is available only in English.)   ***   These summaries by the Registry do not bind the Court. The full texts of the Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Registry of the European Court of Human Rights F – 67075 Strasbourg Cedex Contacts:   Roderick Liddell (telephone: (0)3 88 41 24 92)     Emma Hellyer (telephone: (0)3 90 21 42 15) Fax: (0)3 88 41 27 91   The European Court of Human Rights was set up in Strasbourg in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. On 1 November 1998 a full-time Court was established, replacing the original two-tier system of a part-time Commission and Court. [1] .     Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its Protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.