ITEMID: 001-58758
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 2000
DOCNAME: CASE OF CALOC v. FRANCE
IMPORTANCE: 1
CONCLUSION: No violation of Art. 3;Preliminary objection rejected (incompatibility ratione materiae);Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
TEXT: 9. At 2 p.m. on 29 September 1988 the applicant reported to the police station (gendarmerie) at Le Lorrain, in Martinique, to be questioned in connection with a complaint lodged by a contractor, Mr Vildeuil, the applicant's former employer, who suspected him of having sabotaged his two bulldozers.
10. At 2.30 p.m. the applicant was taken into police custody. According to the report drawn up by Mr Bavarin, the police officer in charge of the investigation, the applicant ran off after learning that his wife had told the police officers that he sometimes got up during the night. He was caught fifty metres further on and was taken, struggling, back to the police station. There he offered further resistance, kicking out. He was restrained with the assistance of the brigade commander, Mr Gaillard.
11. At 5 p.m. the applicant was examined by Dr Thomas, who, after taking his blood pressure and carrying out a cardiovascular examination and an auscultation of the lungs, found nothing amiss.
12. The applicant was questioned again from 7 p.m. to 11 p.m. and denied having committed the offence. However, he did not dispute that he had run away from the police station and had resisted the police officers who were attempting to arrest him. According to the record of the interview, which took place at 10 p.m., the applicant stated:
“At 2.30 p.m., when I came to the police station following your request, you told me that you suspected me of having sabotaged Vildeuil's bulldozers ... You said that my wife had told you that I sometimes got up during the night, and that is when I ran off. You managed to catch me fifty metres further on; I struggled to break free, but I had no intention of getting away. When you took me to the station, I again put up a struggle because I didn't want to go to prison. It is true that I tried to get away, but if I had managed to escape, I would have come back. I stamped my feet when you held me on the premises, and if I kicked any of you, it was unintentionally. ... When I tried to run away, it was to see my wife and get her to come to the police station so that she could tell you in front of me whether I went out at night. ...”
13. At 11.30 p.m., because there was substantial, consistent evidence to justify charging him with forceful resistance to a public officer, the applicant was placed in a security cell, where he remained until 8 o'clock the following morning (30 September). When questioned again by the senior police officer (officier de police judiciaire), he admitted having caused the damage and signed a statement to that effect at 10.30 a.m. He was allowed a rest from 10.30 a.m. to 11.30 a.m. At 11.30 a.m. he was questioned once again and confirmed his previous confessions, adding that he was sorry that he had “jostled” the police officers while attempting to escape.
14. At 1 p.m., after signing the record of his detention in police custody and his last statement, which, like the earlier ones, had been read aloud to him because he had stated that he could not read or write French very well, the applicant was released.
15. On 1 October 1988, the day after being released from custody, the applicant was examined by Dr Kéclard. The medical certificate drawn up by the doctor stated: “[The applicant] has heavy bruising on the right anterior deltoid, with impaired mobility of the right shoulder. There are also signs that both wrists have been bound, causing pain and reduced mobility. Lastly, he complains of lumbar pain and problems with movement; the pain is accompanied by temporary scoliosis due to muscular contraction. His condition requires him to stop work for eight days and to receive treatment.” The doctor prescribed eight days' sick-leave. On 9 October 1988 he extended the sick-leave until 20 October 1988.
16. On 18 November 1988 the applicant lodged a complaint against the Le Lorrain police with the Fort-de-France public prosecutor, alleging assault occasioning actual bodily harm and relying on the certificate issued on 1 October 1988.
17. In the complaint the applicant stated:
“On Thursday 29 September [1988] ... I was received [at the police station] at 2.15 p.m., and before I had even sat down, the police officer ... started reading out a list of questions. He told me that I had put sand in Mr Vildeuil's tractors, and I said that that was not true ... He then said that he would go and get my wife. I said no, because, knowing my wife, I was sure that she would have refused to follow him out of fear and she would have been worried. The police officer followed me menacingly and I ran towards the car. He then shoved and punched me, saying that I had been trying to leave and would not have come back – even though I had turned up at the station as requested. I told him to let go of me and we went back to the station. He continued to grip me more and more firmly while pushing me about, and flung me on to the front doorstep with a judo throw. The officer called two of his colleagues, who arrived straight away. They were wearing shorts but were bare-chested. One of them sat astride me and twisted my arm behind my back, another put his foot on my head, and the third one, after fetching a bag of handcuffs and passing it to the one who was sitting on my back, held my feet. They handcuffed me, put the chain around my neck and fastened it to my other arm. I was lying on the ground, practically strangled by the chain. ... The officers then sent me to the cell, where I remained until the next day without anything to eat ... They let me out the next day, 30 September, and handcuffed me to a chair leg. The police officer questioned me again and asked me ... if I had put sand in a tractor. I said no ... The officer called me a liar and a thief ... I didn't argue and I said that I [had] rights. He made fun of me and made me sign a piece of paper, without even reading out what he had written on it. I signed the document without knowing what it was about, not only because of my reading difficulties but also because of his threatening tone, everything I had just gone through and the worsening pain in my shoulder...”
18. On 30 November 1988, in view of the substance of the complaint, the public prosecutor's office initiated a police investigation.
19. On 12 December 1988 a further complaint was lodged against the applicant by a Mr Remir, who likewise suspected him of damaging machinery, and a police investigation was started.
20. On 23 February 1989 at 8.30 a.m. the applicant was taken into police custody in connection with the investigation; he remained in custody until 8 o'clock the following morning. He was questioned by Mr Munier, of the Le Lorrain police (see paragraph 65 below), and admitted the offence.
21. Between 4 p.m. and 6 p.m. the applicant was questioned about the circumstances in which he had been held in police custody on 29 and 30 September 1988. During the interview the applicant stated:
“On 29 September 1988 I reported to the Le Lorrain police station, as I had been asked to do ... I made to leave the building to find my wife. I did so rather quickly ...
The police officer caught up with me in the street fifty metres away from the police station ... He held me and I grabbed his arm so that I would not have to follow him to the station. He dragged me to the police station courtyard and as he said he was going to lock me up, I tried to escape. I struggled because he was holding on to me. Two other officers, not in uniform, came to help him get me inside the building. They came because I was gesticulating wildly ... The three of them then restrained me, handcuffed me and put me in the cell. Five or ten minutes later, when I had calmed down, they took the handcuffs off. ... At one point [one of the police officers] took me out and handcuffed one of my hands to a chair. When he questioned me, I admitted having sabotaged Vildeuil's bulldozer by putting sand in the engine. It is true I confirm that I committed that offence ...
I did not write a letter to the public prosecutor. Since my arm hurt as a result of the struggle with the police officers, I went [to see a doctor] ... who told me to see a lawyer. I accordingly went to see Mr Manville [who wrote a letter] ... I knew when I signed the letter that it was to lodge a complaint against the police officers, but I did not really understand what was written in the letter; I understood only part of it. I maintain that the police officers did all the things mentioned in the letter, but they did them only because I was putting up resistance and struggling as I did not want to stay at the police station: I wanted to go back and see my wife.
When I signed the letter I understood what it meant.
I lodged a complaint against the police officers because I was worked up and annoyed with them and I like being free and not locked up. I now regret what I did because I know I was wrong.”
22. On 27 February 1989 police officers from a different force (the La Trinité gendarmerie) were instructed by the public prosecutor's office to obtain information about the complaint lodged by the applicant on 18 November 1988. On 28 February 1989, from 9.20 a.m. to 10 a.m., officers from the La Trinité police interviewed Dr Kéclard at his surgery as a witness. During that interview Dr Kéclard stated:
“... On the morning of 1 October I did indeed examine Adrien Caloc. He presented with cervical and lumbar pains and showed signs of bruising. He informed me that he had been beaten by the Le Lorrain police. The patient did not indicate the date of the events, but my findings suggested that they could have taken place the previous day or the day before that. At his request I issued a detailed medical certificate ... On the same day I ordered an X-ray of his cervical vertebrae, lumbar vertebrae and right shoulder. On 3 October 1988 the patient brought back the X-rays ... The examination did not reveal any lesions to the bones or joints. I saw Caloc again on 12 October 1988 at his request; as his right shoulder was still causing him pain, I prescribed additional medical treatment. On 29 October 1988, since the medical treatment had not alleviated the pain, I referred him to the physiotherapist. I should add that as on 29 October 1988 Mr Caloc complained of his left shoulder, I ordered an X-ray of that shoulder; the results did not indicate any lesions to the bones or joints. I prescribed treatment for the left shoulder only. My client followed the course of treatment and in fact the physiotherapist informed me that the treatment had had a beneficial effect. I have not seen Mr Caloc since 29 October 1988.
When I examined Mr Caloc on 1 October 1988, he did not mention any pain in his left shoulder. It was not until 29 October 1988 that he complained of pain in that region, without alluding to what had caused the pain. When I examined my patient's left shoulder, I did not observe any loss of mobility or any deformation, but because he complained of pain, I ordered the X-ray and subsequently the physiotherapy.”
23. The applicant was likewise interviewed by officers from the investigation unit of the La Trinité force and held in police custody from 3.30 p.m. on 28 February 1989 until 11 a.m. on 1 March 1989. It appears from the record of the interview that he was taken into custody on the instructions of the public prosecutor for the purposes of an investigation into the prima facie offence of bringing false accusations against the police officers.
24. During the questioning the applicant stated:
“After being summoned by you, I came to see you of my own accord. I acknowledge that I have taken note of the statement I made to the Le Lorrain police on 23 February 1989 [in connection with the second set of proceedings brought against the applicant] ... I did not agree with the statement ... and, not wishing to annoy the policemen, I signed the statement, but it was not my true signature. I should like to give an explanation of the events which led me to lodge a complaint with the public prosecutor against the Le Lorrain police officers.
... As I didn't want the officers to go to my house, I decided to leave the police station ... The police officer ... caught up with me on the road and told me to return to the police station. I followed the police officer, after putting up some resistance. Once we were in the police station courtyard, the officer caused me to fall to the ground so he could get me into the building. At that moment, two other officers came to his assistance. I wish to state that I was hit by the officers for no reason.
... While I was in custody ... I did receive a visit from a gentleman who was wearing ordinary clothes. He took my blood pressure and asked if everything was all right. I replied yes, but I didn't know that he was a doctor. I had not asked for a medical examination. If I had known he was a doctor, I would have told him that I had been beaten by the police officers. ...”
25. On the following day (1 March 1989) the applicant was again interviewed. The record of the interview includes the following passage:
“Question: Were you subjected to any violence by the police officers after the man came to take your blood pressure?
Reply: All the acts of violence I have reported were carried out before the man visited me. I was not beaten by the police officers after that and was not subjected to any other ill-treatment.
Question: Were the acts of violence you mention carried out while you were being arrested or afterwards?
Reply: All the blows were inflicted while the officers were restraining me ...”
26. After being released from custody, the applicant was interviewed by the Fort-de-France public prosecutor, to whom he repeated his statements.
27. On 1 March 1989, likewise, Dr Thomas, who had examined the applicant while he was in police custody, was interviewed by officers from the La Trinité police investigation unit. During the interview the doctor stated:
“It is correct that on 29 September 1988, in the afternoon ..., at the request of the Le Lorrain police, I examined [the applicant] ... According to the police officers, this person was very aggressive. I must stress that I was acting at the instance of the police. I arrived at the police station in ordinary clothes, without my white coat, carrying my bag. When I arrived, the police officers greeted me, saying 'Good afternoon, Dr Thomas' as they presented to me the person I was to examine, telling him that I was a doctor. He could not have failed to realise that I was a doctor.
I cannot remember whether the medical examination took place in front of the police officers. The patient appeared calm. I questioned him in creole, I think, asking if he was in any pain. He replied that he had nothing to report. I carried out a thorough medical examination of the patient: blood pressure, cardiovascular examination, auscultation of the lungs and a physical examination. I did not notice any marks – no signs of any blows, no haematomas nor anything else – during the examination. I cannot remember whether the patient called me 'Doctor'. I can state categorically that during the examination I did not observe any suspicious marks on the patient's body and the patient did not report anything to me. ...”
28. Also on 1 March 1989 it was decided that no further action should be taken on the applicant's complaint, on the ground that the information brought to the knowledge of the public prosecutor's office did not, as it stood, warrant the institution of criminal proceedings.
29. On 3 March 1989 the applicant lodged a further complaint with the senior investigating judge, alleging assault occasioning actual bodily harm and applying this time to join the proceedings as a civil party. The complaint referred by name to police officers Bavarin, Munier and Marchal.
30. In his complaint the applicant stated:
“On 29 September 1988 I was summoned to the Le Lorrain police station ... Since I had never sabotaged Vildeuil's bulldozers, let alone the one belonging to Mr Remir [who on 12 December 1988 had likewise lodged a complaint accusing the applicant of sabotage] ... I denied the charge to begin with. But after being subjected to serious violence, which was confirmed medically by Dr Kéclard, I admitted the facts even though they were untrue. The first policeman who questioned me told me, when I denied the charge, that my wife had already admitted that I was the one responsible for sabotaging ... Vildeuil's vehicle.
I therefore told the police officer that I was prepared to go and ask my wife for an explanation. That was when the officer prevented me from leaving and started hitting me. I protested against his unlawful violence, and it was then that two other police officers – the commanding officer and another officer – chained me up, as I said before, hit me and put me in the security cell. I was under duress, and because my shoulder and the small of my back were hurting, I was constrained to admit the offence ...
I wish to draw your attention [to the fact] that the doctor who came to see me at the instance of the police never told me he was a doctor; he did not examine me and just took my blood pressure with an apparatus. ...”
31. On 15 March 1989, having regard to the applicant's complaint against the police officers and pursuant to Article 687 of the Code of Criminal Procedure, the Fort-de-France public prosecutor applied to the Criminal Division of the Court of Cassation to designate the court to be responsible for the investigation or trial of the case.
32. On 14 April 1989 the applicant's lawyer filed further pleadings with the Court of Cassation.
33. In a judgment of 31 May 1989 the Court of Cassation dismissed the application, holding that as matters stood it was unnecessary to designate a court because, as the amount of sick-leave on grounds of total unfitness for work did not exceed eight days, the facts, assuming them to be made out, amounted to a minor offence (contravention) rather than a more serious one (délit).
34. On 15 June 1989 the applicant again lodged a civil-party application against the named police officers, alleging assault occasioning actual bodily harm, and on the same day he paid into court the sum of 5,000 French francs, set by the senior investigating judge.
35. On 13 September 1989 the public prosecutor's office applied for a judicial investigation in respect of the three police officers named in the applicant's complaint, and for an expert medical opinion to determine how long the applicant had been totally unfit for work.
36. On 15 September 1989 the investigating judge appointed a medical expert, Dr Cayol, to determine how long the applicant had been unfit for work.
37. In his report dated 29 September 1989 the medical expert concluded as follows:
“Having familiarised myself with Dr Kéclard's medical certificate and taken into account the information available from the questioning and the [medical] examination of 29 September [1988], I can accept that on 1 October 1988 [the applicant] presented a bruise on the right shoulder (after having fallen from an upright position) and pain when using his wrists and the lumbar region, problems which caused:
(a) total physical incapacity for three days,
(b) temporary total unfitness for work for nineteen days.
At present [the applicant] is, medically speaking, physically fit to carry on his usual activities without any changes.”
38. In submissions dated 5 January 1990 the public prosecutor sought to have the applicant's application to join the proceedings as a civil party declared inadmissible, on the ground that even if the facts of which the applicant had complained were established, they could only amount to the minor offence of assault occasioning actual bodily harm and not to a more serious offence, and therefore could not be the subject of a civil-party application lodged under Article 85 of the Code of Criminal Procedure. Those submissions were accepted by the investigating judge, who declared the application inadmissible in an order of 10 January 1990.
39. On an appeal by the applicant, the Indictment Division of the Fort-de-France Court of Appeal upheld the investigating judge's order on 12 March 1990. On 13 March 1990 the applicant appealed on points of law and on 1 October 1990 he filed his full pleadings.
40. In a judgment of 22 January 1991, served on the applicant on 12 March 1991, the Criminal Division of the Court of Cassation quashed the judgment and remitted the case to the Indictment Division of the Basse-Terre Court of Appeal in Guadeloupe, for the following reasons:
“In holding as they did without providing a more adequate explanation, although it was also apparent from the expert medical opinion that the alleged acts of violence had caused the appellant to be unfit to resume work for nineteen days and although the appellant had maintained in his complaint that he had been chained up, the judges did not provide sufficient justification for their decision.
In merely ... upholding the impugned order, which declared inadmissible the complainant's application to join the proceedings as a civil party ..., the Indictment Division disregarded the import and scope of the principle [that civil actions and criminal proceedings are independent of each other].”
41. On 2 April 1991 the applicant filed his pleadings with the Indictment Division of the Basse-Terre Court of Appeal.
42. In a judgment of 16 May 1991 the Indictment Division delegated to its president the power to make directions for any further inquiries into the facts.
43. On 12 August 1991 the President of the Indictment Division directed that the court should inspect the scene of the events, and the visit was scheduled for 2 September 1991. Evidence was taken from the applicant on the same day. He stated:
“During the night I spent at the police station I was handcuffed to a wall and I remained standing against the wall all night. They had handcuffed both my hands, pulling me apart; to be more precise, each handcuff was attached to a chain. Being in that uncomfortable position caused, among other things, an injury to my left shoulder ...”
44. In an order of 2 October 1991 the President of the Indictment Division appointed a second expert, Dr Ensfelder, who on 27 December 1991 submitted a report in which he stated:
“The incident at the Le Lorrain police station on 29 September 1988 resulted in pain in the lumbar region and the wrists, and a bruise on the right shoulder (an X-ray did not reveal any bone fractures) which required medical treatment supplemented by physiotherapy to restore function. In view of the nature of those injuries and the treatment prescribed, the twenty days ordered by the attending physician can reasonably be accepted as a period of total unfitness for work. The occupation of a heavy-plant driver makes considerable demands on the joints of the upper limbs, in particular the shoulder joint, and cannot be carried on unless that joint is functioning properly.”
45. The expert report was notified to the applicant on 18 March 1992.
46. On 24 June 1992 the President of the Indictment Division sent a letter of request to the President of the Metz Court of Appeal, seeking to have charges brought against police officer Marchal, who had in the meantime been transferred to the French mainland.
47. On 27 July 1992 police officers Munier and Bavarin were interviewed at their first examination by the investigating judge and were charged with assaulting the applicant. Mr Marchal was charged on 25 August 1992. On 20 October 1992 the President of the Indictment Division requested information from the commanding officer of the Martinique police (gendarmerie), who replied on 23 October.
48. On 10 November 1992 the President of the Indictment Division directed that the court should inspect the scene of the events.
49. On 7 December 1992 the applicant was examined by the investigating judge. The following is an extract from the record of the examination:
“I informed [the applicant] that, according to information I had obtained after Mr Marchal had been charged ..., Mr Marchal had not been in Martinique at the material time – that is to say, on 29 and 30 September 1988.
[The applicant]: I still wish to maintain my complaint against Mr Marchal ... but I don't know the names of the white policemen who hit me ... I knew police officer Bavarin, who is West Indian. I maintain that the three officers beat me.
It was Bavarin who threw me to the ground; I fell on my left shoulder and he climbed on top of me to immobilise me and called two policemen in shorts ...; it was after the doctor examined me, after the doctor came, that I was ill-treated: they fastened a chain to me and put it around my neck – or to be more precise, they fastened the chain to my arms and neck and left me in a corner of the room, in the police station; I was chained up like that all day and all night with nothing to eat; I maintain that I was ill-treated before and after the doctor came; I repeat that I fell on my left shoulder and had a pain in that shoulder which required fifteen days of massage; it was when the officers pressed themselves against me (before the doctor came) that they caused pain in my right shoulder. I maintain categorically that violence was inflicted on me before and after the doctor came.”
50. On 25 January 1993 the President of the Indictment Division held a confrontation between the applicant and police officers Munier and Bavarin. The following is an extract from the record of the confrontation:
“I pointed out [to the applicant] that, according to Mr Munier ..., he had not been at the Le Lorrain police station at the material time ...
[The applicant] replied: Police officer ... Munier, whom I recognise ..., was definitely at the police station ...; he was one of the three policemen who hit me. Mr Munier, who is here now, kicked me on the backside.
I pointed out [to the applicant] that this was the first time he had stated that he had been kicked on the backside. He replied: I maintain that Mr Munier did kick me on the backside.
I asked [the applicant] who had handcuffed him. He replied: It was Mr Bavarin who handcuffed me and put the chain around my neck. Mr Bavarin punched me all over.
I pointed out [to the applicant] that Dr Kéclard, who had examined him shortly after the events, had not mentioned any blows all over his body.
[The applicant] replied: I fell on my left shoulder and received the most blows on the left side of my head.
Mr Munier: I confirm the statements I made at my first examination on 27 July 1992. As to the statements which [the applicant] has just made, I can only say that they are untrue; I was not there. ...
Mr Bavarin: I confirm in their entirety the statements I made at my first examination on 27 July 1992. I repeat that I never hit [the applicant].
[The applicant]: When Mr Bavarin told me that my wife had said that I had put sand in the engine, I wanted to fetch my wife. When I went off to fetch her, Mr Bavarin held me in the street and punched me. He punched me on my side and all over.
I did not tell Dr Kéclard that I had been punched on the side; I mentioned my left shoulder, which hurt the most, and that was what I told the doctor.
I asked [the applicant] why Dr Kéclard had referred to his right shoulder in the medical certificate.
[The applicant] replied: I was hit on the left shoulder and I felt pain in my right shoulder ...”
51. On 8 March 1993 the President of the Indictment Division directed that the court should inspect the scene of the events.
52. On 26 March 1993 the President of the Indictment Division, in the presence of Dr Cayol and Dr Ensfelder, interviewed Dr Thomas. The following is an extract from the interview:
“Question ...: It appears from the medical certificate issued by Dr Kéclard that on 1 October 1988 ... [the applicant] presented with heavy bruising on the right anterior deltoid, with impaired mobility of the right shoulder; signs that both wrists had been bound, causing pain and reduced mobility; and, lastly, lumbar pain ... due to muscular contraction. Could the witness possibly have failed to observe [the applicant's] condition, in the absence of any complaint on his part, when he examined him at the Le Lorrain police station on the afternoon of 29 September 1988?
Reply: I questioned [the applicant] and examined him (inspection, auscultation, palpation and mobilisation). [The applicant] did not complain of anything and I did not notice anything abnormal on his body. But it is quite possible that [the applicant] experienced the classic phenomenon found in road accidents, where a person who does not complain of anything immediately after the accident or for the next few hours feels pain two or three days afterwards. It is not inconceivable that that is what happened to [the applicant].
I asked Dr Cayol for his opinion. He said: Where bruising results from muscle or ligament damage, the after-effects are frequently delayed for a period that varies according to the intensity of the traumatic impact and may be as long as two or three days, and the pain arising from inflammation is likewise delayed until that moment.
Dr Ensfelder: I agree entirely with the opinion of my colleague Dr Cayol. ... Where bruising results from muscle or ligament damage, mobility is not impaired immediately, contrary to what occurs with fractures or dislocations ...”
53. In additional submissions dated 25 May 1993 the Principal Public Prosecutor at the Basse-Terre Court of Appeal sought to have police officer Gaillard examined and to add to the file the papers in the proceedings brought against the applicant for forceful resistance to a public officer.
54. In a judgment of 17 June 1993 the Indictment Division ordered further inquiries into the facts.
55. After searching for the new address of police officer Gaillard, who had been transferred to the French mainland in 1989, the President of the Indictment Division of the Basse-Terre Court of Appeal sent a letter of request to his counterpart at the Douai Court of Appeal on 13 September 1993, seeking to have evidence taken from the police officer in question.
56. When examined on 21 October 1993 Mr Gaillard stated:
“At the material time I was the commanding officer of the Le Lorrain police in Martinique and was in charge of [police officers] ... Bavarin, ... Munier and ... Marchal. ...
On the very morning of the events – I was off duty that day – Mr Bavarin went to [the applicant's] home, where he met [the applicant's] wife. ...
In the early afternoon I heard shouting outside my window. I went to the window, where I saw a man, who must have been [the applicant], running away from the police station. Mr Bavarin was giving chase a few metres behind. I went down straight away to lend Mr Bavarin assistance. I was not in uniform. We restrained [the applicant] in the street ... By the time I arrived, Bavarin had already caught up with [the applicant] and the two of them were fighting, as [the applicant] was lashing out in all directions. We had to use force to restrain him and take him back to the station. Since we did not have any handcuffs, we propelled him along with his arms held behind his back; he later complained of pain in his shoulder. Proceedings were subsequently brought against him for forceful resistance to a public officer.
Once inside the police station, we let go of [the applicant], and once again he rolled about on the floor; we consequently had to restrain him again and we handcuffed him while he was still on the ground. While those events took place, only Mr Bavarin and I were present ... [The applicant] subsequently calmed down. I personally asked Bavarin what had happened, and he told me that [the applicant] had run away on realising why he had been summoned to the police station. I went back home just as police officers Munier and Marchal were arriving.
Bavarin, who was in charge of the investigation, then questioned [the applicant], in the company of Marchal and Munier. In the afternoon I went down to the police station and was able to make sure that everything was proceeding normally and that no violence had been inflicted on the person of [the applicant] ...
I can attest that he was not subjected to any violence. The only violence, if you can call it that, occurred while [the applicant] was being arrested, and it was necessary in view of his state of extreme agitation ...”
57. On 2 December 1993 the Indictment Division ordered the file on the proceedings to be forwarded to the Principal Public Prosecutor, following the completion of the further inquiries. However, on 14 December 1993 the Principal Public Prosecutor's Office submitted that additional inquiries should be carried out. On 26 January 1994 the applicant filed pleadings with the Indictment Division.
58. In a judgment of 10 February 1994 the Indictment Division ordered further inquiries to be carried out with a view to establishing the dates on which Mr Marchal had travelled to the French mainland. On 11 April 1994 the President of the Indictment Division contacted Air France to that end; in a letter of 25 April 1994 Air France gave a negative reply.
59. On 9 May 1994 the accused, the applicant, the witness and their lawyers were summoned to attend a general confrontation on 12 September 1994.
60. On 12 September 1994 the President of the Indictment Division held a further confrontation between the applicant and police officers Munier, Marchal and Bavarin, during which Mr Gaillard also gave evidence as a witness. The record of the confrontation includes the following statements:
“Mr Gaillard: In my statement of 21 October 1993 I said that by the time I returned home, Mr Munier and Mr Marchal had arrived. Six years after the events ... it is quite possible that I made a mistake; all I know is that [Marchal] went to the mainland for six or seven days ...
[The applicant] stated: Police officer Marchal, who is here in front of me, was not in Le Lorrain on the two days in question. ... [The applicant] confirmed that Mr Munier, Mr Bavarin and Mr Gaillard had been present at the material time ...
Mr Bavarin: I confirm my previous statements: I did not hit [the applicant] at all, either while arresting him or afterwards. When we were rolling on the ground I tried as hard as possible not to hurt him. ... I can state that later on, when we were inside the police station, I did not hit him, tie a chain around him or ill-treat him in any way ...
In view of the fact that [the applicant] had tried to escape, I or another police officer handcuffed him while he was being questioned, but later, when we put him in the security cell, we took the handcuffs off. Whenever he was in the office, and even during periods of rest, we kept the handcuffs on him, as there was a chance that he might run away. I can confirm that when I and a colleague, whose name I no longer remember, put [the applicant] in the security cell, we removed the restraints (the handcuffs) from him – I can't remember exactly whether it was my colleague or I who took the restraints off – so that he was not bound in any way; in fact, that is how I always proceed. I called the doctor because I thought that [the applicant] might have injured himself when he fell.
[The applicant]: [After the doctor left], I remained in the cell and Bavarin hung me up by the arms.
Question: What did he hang you on?
[The applicant]: It was dark, so I couldn't see. I stayed hanging up until the next day, [and] in the morning he let [me] go and took me to his office to confess the truth. He wrote a lot down and made me sign a lot of documents. I stayed inside without anything to eat.
Question [to Mr Bavarin]: Did you or did you not attach him to anything?
Mr Bavarin: I did not attach or suspend [the applicant] in any way; indeed, security cells are designed in such a way that you can't hang anything up, for the detainees' safety.
[The applicant]: When they put me in the security cell, there were three police officers, Bavarin, Munier and Gaillard, and I remained handcuffed in the cell. It was Bavarin who hung me up; Munier kicked me; and Gaillard was standing there and didn't do anything to me; ... I arrived at 2.30 p.m. and they put me in the security cell shortly afterwards. It was not until late in the evening that they hung me up in the cell; it was Bavarin who hung me up and I stayed like that all night.
Mr Bavarin: At no time did I hang [the applicant] up in the security cell in any manner whatsoever.
[The applicant]: I don't know what they attached me to; as I said, it was dark. When day broke it wasn't very light in the security cell. The cell was not lit up; I didn't see a lamp or a switch or anything. I was hung up by a chain with my arms apart. I can't tell you the size of the chain; there were handcuffs at both ends, but I didn't see how big the links in the chain were.
Question: How did Mr Bavarin manage to hang you up?
[The applicant]: He's the one who knows what it's like inside the cell; I don't know. ... Bavarin put the handcuffs on both my arms; he's the only one who knows how he hung me up.
Question [to Mr Gaillard]: How are security cells set out?
Mr Gaillard: There were two security cells in the police station at the time, and they were fully in conformity with the regulations; there were no hooks or bars inside them. As far as I recall, there were air vents of 8 mm or 10 mm, slightly broader than a cigarette. Our handcuffs are a standard design and cannot possibly be used to hold a person's arms apart. I fail to see how we could have hung someone up in the security cell when we had been having trouble restraining him. I can state that when Mr Bavarin took [the applicant] into the security cell in the evening, I was not there. The light switch for the security cell is outside the cell; the light bulb is embedded in the thickness of the wall inside a block of reinforced glass.
Question [to Mr Bavarin]: How do you account for the marks which the doctor observed on [the applicant's] wrists?
Mr Bavarin: Very often when you put restraints on people, they leave marks on their wrists.”
61. In a judgment of 15 December 1994, delivered after the applicant had filed pleadings on 7 October and 23 November 1994, the Indictment Division held, in accordance with the Principal Public Prosecutor's submissions of 25 October 1994 and after reiterating the applicant's and the police officers' accounts and the medical findings, that there was no serious evidence against the officers in question.
62. It held:
“Whether the three persons placed under investigation should be committed for trial depends on the answers to the following questions:
1. Did any violence occur?
Caloc referred initially to a scuffle (29 September 1988 and 23 February 1989); he later referred to blows, without giving any further details ('I was hit', 'beaten' – 28 February 1989), and then to unspecified blows but also to being chained up all night (2 September 1991) and all afternoon (7 February 1992); lastly, besides that form of ill-treatment, he spoke of specific blows on his buttocks, his side, the left-hand side of his head and all over his body (25 January 1993).
Police officers Bavarin and Gaillard mentioned a scuffle, while the latter stated that Caloc had been taken back to the police station with both his arms held behind his back. They categorically denied that they had inflicted any blows or used a chain.
Caloc's statements, the acknowledgment by the two police officers that they used force and Dr Kéclard's medical certificate establish that some violence did occur.
2. What form did the violence take?
Caloc and the police officers disagreed on this point, but only from 28 February 1989 onwards. The noticeable escalation in Caloc's successive statements as regards the severity of the violence he suffered does not make his evidence persuasive, unless it can be corroborated by the certificate issued and the statements made by Dr Kéclard.
The only visible lesion observed by the doctor was a bruise on the right shoulder. It might have been the result of a blow, but it could also have been caused by a fall. No signs of any blows were observed in the regions mentioned by Caloc at a later stage. It has therefore not been established that he was 'hit' or 'beaten'.
The pain, scoliosis and marks indicating that both wrists had been bound may, however, be consistent with a fall, a scuffle and being chained up.
3. When did the violence occur?
According to the police officers, in the early afternoon, at about 2.15 p.m., when they had to use force to restrain Caloc, who was putting up resistance after running away.
According to the complainant, in the early afternoon, while he was offering resistance to the police officers – in any event, before Dr Thomas's visit (statements from September 1988 to March 1989) – or before and after the doctor's visit, including the following night (later statements).
What weight can be attached to the police officers' statement? Their version of the events is coherent, consistent in time and credible as a whole; their disagreement on two specific points does not affect the overall account. There remains the possibility that they concealed their knowledge of events that had occurred after they restrained Caloc.
What weight can be attached to Caloc's statements? The statements he gave at different times contain a fundamental contradiction, which naturally diminishes their credibility. When was he telling the truth?
According to the complainant, from March 1989 onwards, since the statements made before that date had been taken by police officers, including two of the officers under investigation. The statements had, he argued, been distorted by his fear of the police officers and his comprehension difficulties as no interpreter was present. Those obstacles had disappeared when [he] was able to speak to a judge with the assistance of an interpreter. Moreover, his later statements, which referred to violence being inflicted well beyond the early afternoon, were, in his submission, corroborated by two circumstances: firstly, no physical anomalies had been noted during Dr Thomas's visit, yet a number of lesions had subsequently been observed by Dr Kéclard; secondly, he had denied the offence on 29 September, yet a confession had suddenly been obtained the following day. Accordingly, he argued, something had happened between the first and second medical examinations and between the denials and the confessions.
However, that reasoning is not in any way consistent with the evidence.
Even leaving aside the initial record drawn up by Mr Bavarin, it is clear that in his statements of 23 February, which were made with the assistance of an interpreter, Caloc gave exactly the same version of the events. Admittedly, when he was interviewed again five days later by police officers, this time from the La Trinité force, he retracted those statements, maintaining that he had not wanted to 'annoy' the police officers, but on the very same day (28 February) he reiterated his account, stating clearly: 'All the acts of violence which I have reported were carried out before the man [Dr Thomas] visited me ... All the blows were inflicted while the officers were restraining me.' This third record, which was signed by Caloc in front of the officers from the La Trinité police, against whom there could not have been any suspicion of the acts of violence of which he complained, plainly corresponded finally to the truth in his eyes and cannot be erased by his subsequent statements. If any violence had occurred while he was being questioned or 'chained up', he would not have failed to mention it on that occasion.
It should be noted that the allegation of a chain being tied around his neck and attached to the wall of the cell was not made spontaneously by Caloc. He did not refer to that incident until his first examination on 2 September 1991 by the President of the Indictment Division of the Basse-Terre Court of Appeal, although it had been mentioned much earlier in documents drawn up by his lawyer (the pleadings filed with the registry of the Court of Appeal on 1 March 1990, the day before the hearing in that court's Indictment Division). The allegation is, moreover, wholly incompatible with the standard official design of security cells, and Caloc was confused about the matter at the general confrontation on 12 September 1994.
The fact that Caloc did not complain of any pain to Dr Thomas but did to Dr Kéclard two days later does not necessarily mean that any violence occurred in the intervening period, since, as the three doctors interviewed on 26 March 1993 pointed out, pain is sometimes not felt until two to three days afterwards.
Nor were the confessions of 30 September necessarily the result of ill-treatment meted out the night before. Caloc was entirely at liberty to retract them shortly afterwards. Yet he did not do so until the hearing on 13 March 1989, having in the meantime confirmed them to other police officers and a member of the State legal service. There is therefore no proof at all that Adrien Caloc was ill-treated after the police officers' initial efforts to restrain him; only at that time was he subjected to any violence, the physical effects of which were noted by Dr Kéclard.
4. Who was responsible for the violence?
Certainly not Mr Marchal, who was nonetheless formally accused by Caloc before he withdrew his accusations at the last confrontation. It has been established that that officer was in mainland France at the material time. Nor was Mr Munier responsible, since he was not at the police station at the time of the initial events and only returned later, while Caloc was being questioned. The violence was indisputably perpetrated by Mr Bavarin and Mr Gaillard, who acknowledge that they used force. However, the complainant has lodged no complaint against the latter officer.
5. Was the violence unlawful?
In his first version Caloc acknowledged that he had 'run off' or left the police station 'in a hurry'. He admitted to having 'put up some resistance', 'gesticulating wildly' as the police officers sought to restrain him. In his second version he tried to deny that episode, but the observations made above on the respective weight to be attached to Caloc's two versions are also valid here.
The use of force to restrain Caloc while he was offering resistance to the police officers who were arresting him was perfectly legitimate. The violence inflicted on that occasion did not go beyond what is acceptable in such matters: it can be concluded from the medical findings that there was a scuffle and a fall, but that no blows were struck and no weapons were used. The marks that appeared on Caloc's wrists were those commonly left by handcuffs. The answer to the fifth question is therefore 'no'.
In conclusion, it appears after a thorough assessment of the case file that there is no serious evidence against the police officers concerned or against any other person.”
63. After the applicant had appealed on points of law on 19 December 1994 and filed full pleadings on 20 June 1995, the Criminal Division of the Court of Cassation upheld the Indictment Division's judgment on 6 March 1996, holding:
“The Indictment Division, referring to the expert medical opinions and the evidence and statements obtained during the police investigation and the judicial investigation, set out its reasons for holding that there was not sufficient evidence of intentional violence by anybody on the person of [the applicant].”
64. After being held in police custody from 29 to 30 September 1988, the applicant was charged with intentional damage to another person's property and forceful resistance to a public officer, and the file on Mr Vildeuil's complaint was forwarded to the public prosecutor's office.
65. Following a further complaint against him, lodged on 12 December 1988 by another heavy-plant owner, Mr Remir, the applicant was again taken into police custody by the Le Lorrain police, in the person of Mr Munier, on 23 February 1989 at 8.30 a.m. and was detained until 8 o'clock the following morning. He admitted the offence and gave statements about his initial period in police custody in September 1988 (see paragraph 20 above).
66. On 24 February 1989 the applicant appeared before the Fort-de-France Criminal Court in accordance with the direct-committal procedure, but asked for time to prepare his case. He was released under court supervision and was accordingly required to report to the Le Lorrain police station on 27 February and 16 March 1989. The hearing was adjourned until 13 March 1989.
67. At the hearing, according to the court record, there was a dispute between the public prosecutor and the defendant's lawyers when the public prosecutor refused to exclude a witness. The lawyers went to find the Chairman of the Bar, who demanded an apology from the public prosecutor for stating that he would not be told what to do by lawyers who knew nothing about procedure. When the public prosecutor refused to apologise and asked for it to be noted in the record that the lawyers had advised him to take another look at his copy of the Code of Criminal Procedure and had called him an incompetent bully, all the lawyers present left the courtroom, having had their request for an adjournment refused, and the hearing therefore continued without them. The police officers confirmed their statements, while the applicant argued that he had admitted the offence because he had been hit. In addition, evidence was heard from the doctors (Dr Thomas had also given evidence during the police investigation on 1 March 1989).
68. In a judgment of 10 April 1989 the Fort-de-France Criminal Court found the applicant guilty of intentional damage to another person's property and forceful resistance to a public officer, and gave him a six-month suspended prison sentence.
69. Appeals against the judgment were lodged by the public prosecutor's office on 11 April, the complainant on 14 April and the applicant on 17 April 1989.
70. On 7 December 1989 the Criminal Appeals Division stayed the proceedings in respect of the charges of intentional damage and forceful resistance until a final decision had been given on the applicant's criminal complaint and civil-party application alleging assault during his time in police custody (see above).
71. In judgments of 5 April and 29 November 1990 the Criminal Appeals Division again stayed the proceedings for the same reasons.
72. According to the information in the file, the proceedings against the applicant have not since been resumed by the public prosecutor's office.
73. Article 687 of the Code of Criminal Procedure (since repealed) provides:
“Where a senior law-enforcement officer [officier de police judiciaire] is likely to be charged with a criminal offence, allegedly committed in the area in which he performs his duties, whether or not in the course of those duties, ..., the public prosecutor dealing with the case shall without delay submit an application to the Criminal Division of the Court of Cassation, which shall proceed and determine the matter in accordance with the procedure for settling conflicts of jurisdiction and shall designate the court responsible for the investigation or trial of the case.”
74. It is clear from previous cases that the procedure laid down in Article 687, which was in force at the material time, must be set in motion without delay by the public prosecutor – regardless of whether the proceedings were instituted by the prosecution or by the complainant – as soon as the senior law-enforcement officer is accused and therefore likely to be charged. Otherwise, the investigating judge and, consequently, the Indictment Division have no jurisdiction (Criminal Division, 7 November 1973, Bulletin criminel no. 405; 22 June 1978, ibid., no. 210; Full court, 31 May 1990, ibid., no. 221).
In addition, a senior law-enforcement officer named in a complaint as the perpetrator of an offence must be regarded as likely to be charged within the meaning of Article 687; it is not necessary to find that there is sufficient evidence to warrant the charge.
Lastly, the procedure laid down in Article 687 must be set in motion by the public prosecutor, regardless of whether proceedings were instituted by means of direct committal or on a complaint lodged with a civil-party application (Criminal Division, 15 January 1968, D. 1969, 509, note by J.-M.R.).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 3


ITEMID: 001-69906
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF MILD AND VIRTANEN v. FINLAND
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1+6-3-d;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 8. The applicants were born in 1967 and 1970 respectively and live in Vantaa.
9. A shop selling fur coats in Kokkola was burgled on 1 March 1995. Two men, M. and R., were charged with aggravated theft before the District Court of Kokkola (käräjäoikeus, tingsrätten). On 10 April 1995 the District Court convicted them both as charged. The convictions were based on their acknowledgement of the charges.
10. The police investigation concerning the applicants as suspects in the above-mentioned offence began on 11 May 1995, when they were taken into police custody. The first applicant was arrested on 12 May 1995 by a decision of the District Court. The second applicant was arrested on the same day, but released in the afternoon.
11. The criminal proceedings against the applicants were instituted before the above District Court on 5 June 1995. They were charged with aggravated theft. They were suspected of having stolen fur coats worth 327,500 Finnish marks (FIM; 55,081.55 euros (EUR)) as accomplices with M. and R., who had already been convicted of the same offence. The applicants denied the charges.
12. According to the indictment, the applicants visited the fur shop in the beginning of February 1995 and made themselves familiar with the shop and its merchandise. The second applicant tried on headgear and promised to collect it the following week after it had been altered to fit her. The applicants did not, however, return to the shop at the agreed time, or later. During their visit to the shop, the first applicant requested to see the most expensive fur coat and the salesman showed him a rack with the most expensive furs. Later on, the first applicant proposed to M. to steal fur coats from the shop. At the end of February M. and the applicants contacted R., who lived in the Helsinki area, and apparently M. asked R. to take part in the burglary. Having rented or borrowed a Chevrolet Chevy van from D. on 28 February 1995, R. and M. drove to Kokkola, the applicants driving ahead of them in their light coloured Opel. M. and R. spent the night in the applicants’ home in Kokkola. The following day, i.e. on 1 March 1995, the first applicant showed M. and R. the fur shop by driving past it a couple of times in the above-mentioned Opel. Then all three of them returned to the apartment. The applicants stayed at home while M. and R. returned to the shop in the van, broke into the shop and stole the fur coats. Immediately after the burglary M. and R. left for Espoo, a town in the Helsinki area. The applicants followed M. and R. to Espoo in their own car. Together they hid the fur coats in a garage rented by the first applicant. Later on, the first applicant, M. and R. began to market the fur coats.
13. M. and R. were not present as the summons to appear before the court had not been served upon them. The public prosecutor referred in evidence to the statements given by them during their own police investigation. According to M.’s statement, the first applicant had told him that the applicants had visited the shop in order to buy headgear and while there, he had got the idea of stealing the furs. The first applicant had proposed that M. break into the shop. M. had considered the proposal and eventually, about a month later, accepted it as he was in need of money. According to M., the applicants did not take part in the burglary. In the beginning, the first applicant had said that the money would be divided into four parts, i.e. the second applicant would also have got her share. In R.’s statement to the police he said that the first applicant had told him about his plans of breaking into a fur shop, which the applicants had visited in order to buy something for the second applicant. R. could not, however, remember whether it was M. or the first applicant who had asked him to join them. R. told the police that he and M. had driven to Kokkola in the van, following the applicants. They had spent the night at the applicants’ apartment. The next day, the first applicant, M. and R. went to have a look at the shop in the first applicant’s car. In the evening M. and R. returned to the shop, while the applicants stayed at the apartment. After the burglary they all left for Helsinki, but in two separate cars. They all met twice for coffee during the journey. Having reached Helsinki, they went to a garage to which the first applicant had the keys. Later on M. and the first applicant began to market the furs. According to R., the burglary was the first applicant’s idea. M. and R. had not even visited Kokkola before the burglary.
14. At this point the applicants’ counsel noted that if the applicants were to be convicted on the basis of the statements given by M. and R., they should be heard in person before the court.
15. The fur shop’s salesman V. gave testimony before the District Court. He identified the applicants as the couple who had visited his shop in February. The day of the burglary he had noticed a white car driving by with three men in it. All three had turned their heads looking at the shop, but they had been too far away to recognize.
16. The lender of the van, D., was heard as a witness before the court. He repeated his statement given during the police investigation, inter alia, that having been questioned by the police [on 13 March 1995] he was contacted by the first applicant, who wanted to know what D. had told the police, but before the District Court D. was no longer certain as to whether it was the first applicant or R. who had queried what he had told the police. D. was also uncertain as to whether he had seen the applicants in R.’s company before lending his van or after it had been returned to him. Furthermore, D. said that at the relevant time he was selling and buying cars and that he had discussed a car deal with the first applicant when they met. D. also said that his van did not carry any stickers or the like.
17. Police officer Y. was also heard as a witness before the District Court. He told the court that he had in general kept an eye on the first applicant as he was aware of his past. The day of the burglary he had seen a van parked in the parking lot outside the applicants’ apartment. He was not certain as to whether it was the same van as the one used by M. and R. in the burglary. Y. had noticed that the van carried a yellow sticker from which he had concluded that the car originated from the Helsinki area.
18. At this point the public prosecutor referred to the first applicant’s statement during the police investigation according to which he did not remember ever visiting the fur shop, but that he might have gone there while Christmas shopping. Moreover, the first applicant had told the police that he had discussed a car deal with D., but he had concealed the fact that he had been present when the van was returned.
19. The public prosecutor referred to the second applicant’s statement during the police investigation, according to which she denied having ever visited the fur shop or that M. and R. had spent the night at the applicants’ apartment in Kokkola. Furthermore, she told the police that she had visited a friend, I., in Espoo, on the day of the burglary.
20. The public prosecutor pointed out that I. when questioned as a witness by the police [on 31 May 1995] did not confirm the second applicant’s story. According to I., the second applicant had rung her a couple of weeks earlier and asked her to give her an alibi. I. was not heard before the District Court during this session.
21. The District Court adjourned the case until 29 June 1995, ordering the public prosecutor to call M. and R., who were in liberty, to be heard before the court.
22. On 29 June 1995, the public prosecutor requested that the case be adjourned as M. and R. had not been summoned yet. The District Court adjourned the case until 11 October 1995.
23. On 11 October 1995 the case was heard before the court again. M. and R. were absent even though they had been summoned. The public prosecutor noted that according to Article 6 § 3(d) of the European Convention on Human Rights and Fundamental Freedoms, the applicants had a right to examine or have examined the witnesses against them, but that right was not unconditional. He referred to two judgments of this Court (Asch v. Austria, judgment of 26 April 1991, Series A no. 203 and Artner v. Austria, judgment of 28 August 1992, Series A no. 242A). In particular, the public prosecutor referred to the principle according to which there was no violation of Article 6 § 3(d), if the conviction was primarily based on other evidence submitted during the trial. In this respect, he referred to the evidence given by the witnesses and argued that the applicants could be convicted even though they had not been able to examine M. and R. as witnesses during these proceedings. The District Court again adjourned the case until 29 February 1996, ordering the public prosecutor to summon M. and R. to be heard before the court.
24. On 28 February 1996 M. sent a facsimile to the District Court, withdrawing all his statements during the police investigation concerning the applicants as they were false. He alleged that he had personal reasons to make erroneous statements and, while in detention, had been given to understand that such statements could contribute to his release. Moreover, he informed the court that he was aware of the fact that he could not be forced to appear before the District Court. M.’s facsimile was communicated to the applicants and to the public prosecutor at the hearing of 29 February 1996.
25. On that same day, the District Court rejected the charges against the applicants as it found that the mere fact that V. had given evidence that the applicants had visited his shop as customers in February and that the van used in the burglary had been seen parked in the parking lot close to the applicants’ apartment did not show that the applicants had committed the offence with which they were charged.
26. The public prosecutor appealed to the Vaasa Court of Appeal (hovioikeus, hovrätten), requesting that the applicants be convicted as charged. According to him, the evidence presented before the District Court, taking into account also the statements of M. and R., was strong enough to justify a conviction.
27. On 26 November 1996 the Court of Appeal held an oral hearing, in which the applicants, V., D. and Y. were reheard. D. clarified that the applicants had been in M.’s and R.’s company when the van was returned to him and that it was the first applicant who had queried what D. had told the police when he was questioned.
28. In addition I. was heard as a witness before the Court of Appeal. She testified that the second applicant had visited her in Espoo in the afternoon of 1 March 1995. I. was certain that the first applicant had dropped the second applicant off at the apartment and then picked her up a couple of hours later. According to I., the version given to the Court of Appeal was the truth. When questioned by the police, she had not been able to tell the truth due to the police officer’s unpleasant attitude towards her. At that time, she did not want to get involved in the case.
29. M. and R. were not summoned and they were not heard before the Court of Appeal. Nor did the applicants request that M. and R. be heard.
30. On 27 December 1996 the Court of Appeal convicted the first applicant of aggravated theft and sentenced him to one year and ten months’ imprisonment. The second applicant was convicted of aiding and abetting the above-mentioned offence by visiting the fur shop together with the first applicant. She was sentenced to a suspended term of four months’ imprisonment. The Court of Appeal, having first referred to the Court’s judgments Asch v. Austria and Artner v. Austria, cited above, found that:
“M.’s and R.’s statements concerning the events given during their police investigation and repeated before the District Court [in their own case] are supported by other evidence presented in the present case. V. observed the applicants visit the fur shop and D. noted the presence of the applicants when the borrowed van was returned to him. Moreover, the first applicant showed an interest in what D. had told the police. Furthermore, the statements of M. and R. are supported by Y.’s observation of D.’s van in Kokkola close to the applicants’ apartment.
Even though the applicants did not have an opportunity to put questions to M. and R., they had an opportunity to submit arguments against their statements, both during the police investigation and also before the District Court as well as the Court of Appeal. The applicants have, nevertheless, denied having ever visited the fur shop, which, taking into account the certainty of V. as to the applicants’ identity, tends to diminish the credibility of the applicants’ statements.
The Court of Appeal does not find that the changing of I.’s statement - or the reasons given for the change - are credible. The Court of Appeal finds it irrelevant that M. has, in a facsimile submitted to the District Court, retracted his earlier statement.”
31. The applicants requested leave to appeal from the Supreme Court (korkein oikeus, högsta domstolen), arguing that they should have had a right to examine M. and R. before the courts, as the other evidence was not strong enough to support their convictions. The alleged fact that they had visited a shop or passed by it did not prove that they had committed the serious offences they were convicted of. Furthermore, on the day of their alleged visit to the fur shop they had both been at an oral hearing before the District Court of Espoo, which is situated some 490 kilometres from Kokkola, and could not even in theory have been at the shop at the time mentioned in the judgment. The applicants later submitted to the Supreme Court a copy of the District Court’s minutes of that day in support of their argument.
32. On 9 June 1997 the Supreme Court refused the applicants leave to appeal.
33. Chapter 17, section 18 of the Judicial Procedure Code provides that a person who has earlier been convicted of an offence which is the subject of pending court proceedings may be heard in the case, but not in the capacity of a witness or party to the proceedings.
34. At the time of the proceedings there were, however, no provisions of law under which such a person could have been forced to appear before a court.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-d


ITEMID: 001-68614
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF FRIZEN v. RUSSIA
IMPORTANCE: 2
CONCLUSION: Violation of P1-1
JUDGES: Christos Rozakis
TEXT: 8. The applicant was born in 1951 and lives in Krasnoyarsk.
9. In January 1995 a limited liability company, Telemediaservice (“TMS”), hired the applicant as an accountant.
10. In 1996 TMS granted the applicant an interest-free loan for the purchase of a Toyota Land Cruiser car. The terms and conditions of the loan were set out in a loan agreement of 10 June 1996 signed by the applicant and the director-general of TMS, Mr Yevseyev. The loan was for 266,847,000 Russian roubles* (“RUR”) over a period of eighty-four months. On 13 June 1996 the total amount was transferred directly to the bank account of the car dealer.
11. On 30 September 1996 the State Road Inspectorate of the Krasnoyarsk Region registered the purchased car in the applicant's name.
12. According to an undated certificate signed by the new TMS director-general, Ms Yakovleva, the applicant reimbursed seven instalments of RUR 3,200 (after denomination) between June 1996 and January 1997 and one additional instalment of RUR 490 in May 1999, to the total of RUR 22,890.
13. On 27 November 1998 the Tsentralniy District Court of Krasnoyarsk convicted Mr Yevseyev and the applicant's husband, Mr Frizen, of large-scale fraud. The applicant was a witness at the trial. It was established that the accused, while holding managerial positions in the State telecommunication company MTTS, had founded the TMS company that acted as a broker in the procurement of telecommunication equipment for MTTS. They used the MTTS's funds to make advance payments under the contracts for the purchase of telephones signed by TMS and then sold these telephones to MTTS at inflated prices. The court found:
“Being managers of MTTS, Frizen and Yevseyev... used their position... to take advantage of the cash flow of [the MTTS] for their personal gain. Moreover, relatives of the defendants were simultaneously employees of the TMS and MTTS and they received a salary from both companies. It was established by the court... that the salary of the TMS employees, loans and dividends were paid out of money that had been taken from [the MTTS]”.
14. The court noted that the applicant had not shown the loan agreement to the investigator and held:
“As it was established by the court that the loans for the purchase of cars had been granted to Yevseyev and [the applicant] unlawfully, at the expense of [the MTTS], without appropriate documentation, the court considers it necessary to order forfeiture of the cars as compensation for the damage (обратить в возмещение ущерба)”.
15. The court sentenced both Mr Frizen and Mr Yevseyev to four years' imprisonment and issued confiscation orders in respect of their property. It also recovered RUR 4,076,387 from them and ordered forfeiture of the TMS company's cash funds and the applicant's and Mr Yevseyev's cars as compensation for the damage.
16. In December 1997 the applicant's car was seized. On 12 April 1999 certain household items in the applicant's flat were also seized.
17. The applicant brought a civil action, seeking to lift the seizure order in respect of her household items and the car.
18. On 23 August 1999 the Oktyabrskiy District Court of Krasnoyarsk granted the applicant's action in respect of the household items but upheld the seizure of the car, finding as follows:
“The court has established that on 10 June 1996 the TMS company and [the applicant] concluded a loan agreement, by the terms of which [the applicant] was granted a loan of RUR 266,847,000... It is true that, according to the sale certificate of 9 July 1996 and a copy of the vehicle registration card, the car at issue was registered in [the applicant's] name. However, the court considers that the plaintiff's arguments to the effect that she is the legal owner of the car... are unsubstantiated because the judgment of the Tsentralniy District Court of Krasnoyarsk of 27 November 1998... had established that the loan for the purchase of that car had been granted unlawfully and, accordingly, the car had been forfeited as compensation for damage.”
19. On 6 October 1999 the Civil Division of the Krasnoyarsk Regional Court, on an appeal by the applicant, upheld the judgment of 23 August 1999. The court justified the seizure of the car in the following terms:
“The [first-instance] court correctly refused [the applicant's] claim... because the circumstances showing that [the applicant] had purchased the car from her own (borrowed) money had not been confirmed... [T]here is no evidence that the borrowed funds were used for the purchase of the car, the loan was only reimbursed from [the applicant's] salary and the last instalment was paid on 1 January 1997”.
20. The Civil Code of the Russian Federation provides:
1. Where the law so provides, property may upon a court decision be taken away from its owner without compensation by way of punishment for commission of a crime or another offence (confiscation).
2. Where the law so provides, a confiscation order may be issued in administrative proceedings. The decision on confiscation made in the administrative proceedings may be appealed against to a court.”
21. The Criminal Code of the Russian Federation provides that “punishment shall be imposed on a person found guilty of commission of a crime”. Article 44 (g) provides that confiscation is a form of punishment. Article 52 defines confiscation of property as the “compulsory withdrawal, in whole or in part, without compensation, of the property owned by the convicted person”.
22. The RSFSR Code on Administrative Offences (in force at the material time) provided for the confiscation of things by means of which the administrative offence had been committed or which had been the object of the offence.
23. The RSFSR Code of Criminal Procedure (in force at the material time) provided that instruments of the crime which belonged to the defendant (Article 86 § 1) and criminally acquired money and other valuables were to be forfeited whereas other items were to be returned to their lawful owner (Article 86 § 4).


ITEMID: 001-115211
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF NENKOVA-LALOVA v. BULGARIA
IMPORTANCE: 4
CONCLUSION: No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)
JUDGES: David Thór Björgvinsson;George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Paul Mahoney;Zdravka Kalaydjieva
TEXT: 6. The applicant was born in 1961 and lives in Sofia. She is a journalist by profession. At the relevant time she was employed by the Bulgarian National Radio (“BNR”). She is now working for the Bulgarian section of Deutsche Welle.
7. At the material time the applicant was an editor in the BNR’s “Hristo Botev” programme, working as a member of the current affairs team. She hosted a weekly radio show, “Good Day” („Добър ден”), which was broadcast each Friday morning between 9 a.m. and 11 a.m.
8. The BNR is a public broadcaster owned by the State. At the relevant time its operations were regulated by the Radio and Television Act 1996 (see paragraphs 3235 below).
9. On Monday 5 October 1998 the editorial board of the “Hristo Botev” programme met to discuss various issues arising in relation to shows intended to be broadcast during the week. One of the programme’s editorinchief, Mr A.M., put before the board a proposal for the applicant’s show due for broadcast on 9 October 1998. The proposal was for the show to include a discussion with another journalist employed as an editor by BNR, Ms V.N. According to the minutes of the meeting, the board “reject[ed] the proposed interlocutor [Ms V.N.]. [Mr A.M. was] against and want[ed] a resolution by the [board].”
10. On the morning of Friday 9 October 1998 the applicant hosted her regular weekly show. Ms V.N. and several other journalists took part in it. They discussed a number of journalistic investigations carried out by them. They concerned, among other things, allegations of improper sales of municipal land, alleged corruption by government officials, and the alleged financing of the then ruling political party, the Union of Democratic Forces, through the unlawful diversion of money from the customs. Several of the items discussed during the show had been prepared by Ms V.N.
11. Later that day, 9 October 1998, two of the “Hristo Botev” programme’s editorsinchief, Mr I.R. and Ms M.P., gave written explanations about the incident to the BNR director general. In his explanations Mr I.R. said that the programme’s editorial board had resolved at its meeting that Ms V.N. should not take part in the show as a host or as an interlocutor, and that that resolution had been noted in the minutes and signed by the board’s members. In her explanation Ms M.P. said that the board had rejected Ms V.N.’s participation in the show, and that Mr A.M. had noted his disagreement with that and had requested a resolution on that point, which had been taken by means of a vote.
12. The same day Mr I.R. and Ms M.P. also asked the applicant to explain, in writing and not later than 4 p.m., why she had disregarded the “resolution of the [editorial board] of 5 October [1998] which did not allow the participation of [Ms V.N.]” in the show.
13. In her reply, addressed to Mr I.R., the applicant pointed out that Ms V.N. had not taken part in the show as an interlocutor, but as one of the authors, together with three other journalists. She went on to specify that Ms V.N.’s participation had altogether lasted one hundred and thirteen minutes.
14. The same day the BNR management board met to consider “technical discipline” during the show on 9 October 1998. It found that by allowing Ms V.N. to in effect host the show the applicant had breached the editorial board’s resolution and the programme’s weekly schedule. It further found that Ms V.N. had taken part in the show in disregard of the board’s resolution, that Mr E.I., the show’s editor, had also breached the board’s resolution and the weekly schedule, and that the editorsinchief, Mr A.M., Mr I.R. and Ms M.P., had failed to exercise sufficient control over the preparation and the running of the show. The board resolved to impose disciplinary punishments on all them, to be determined in line with their varying degrees of fault. It entrusted the execution of its resolution to the BNR director general.
15. On 12 October 1998 the BNR director general, relying on Article 187(3), (7) and (10), Article 188(3), Article 190 § 1 (6) and Article 330 § 2 (5) of the Labour Code 1986 (see paragraph 39 below), dismissed the applicant on disciplinary grounds. The reasons given were that she had allowed Ms V.N. to host the show in her stead, thus breaching the technical rules on the operation of radio programmes, that she had breached the programme coordination rules, that she had disregarded the editorial board’s resolution rejecting the proposal for Ms V.N. to take part in the show, and that she had breached Rule 7 of the “Hristo Botev” programme and point 1 of order no. 4 of 9 June 1998 of the programme’s director (see paragraphs 37 and 38 below).
16. The BNR director general also dismissed Ms V.N. and Mr E.I., giving similar reasons.
17. On 12 October 1998, during the regular Monday meeting of the “Hristo Botev” programme’s editorial board, Mr A.M. (see paragraph 9 above) tendered his resignation, citing, among other things, the lack of clear rules on who could and who could not host radio shows.
18. Those events sparked a vigorous reaction in the media community and prompted the publication of several articles deploring what the journalists saw as an unjustified interference with their colleagues’ freedom of expression. In a declaration of 14 October 1998 the Union of Bulgarian Journalists protested against the dismissals of the applicant, Ms V.N. and Mr E.I., saying that they were an example of “the appetite of forces alien to the journalist profession to gag it”.
19. The National Radio and Television Committee (“the NRTC”), the chief media regulatory body in Bulgaria (see paragraph 36 below), discussed the above events at a meeting on 26 October 1998.
20. It observed that the dismissal orders did not cite any provisions of the Radio and Television Act 1996, and that there was therefore no scope for the NRTC to assess whether the radio show had complied with those provisions. On the face of it, there existed a purely employment dispute, which could be examined only by a court. However, the NRTC was competent to verify whether the dismissals were consistent with the 1996 Act and the freedom of expression which it guaranteed.
21. In the NRTC’s view, the main safeguard against encroachments on freedom of expression in the national electronic media was the existence of internal regulations and their proper implementation. The NRTC noted that at three of its previous meetings it had discussed draft regulations drawn up by the BNR management board, and had noted that they did not envisage any mechanism governing the workings of the BNR collective bodies and the journalists’ rights and obligations. The NRTC’s recommendation for those matters to be addressed had not been heeded. The lack of precise regulations was somewhat offset by the existence of rules governing the workings of individual BNR programmes. However, the rules of the “Hristo Botev” programme did not say on which legal provision they were based and predated the BNR regulations on which they were supposed to be based. Those rules did not define clearly the competencies of the journalists in their various professional capacities as authors, hosts, editors, reporters and so on. Neither the BNR regulations nor the individual programmes’ rules dealt with the powers of collective bodies such as management and editorial boards. The applicant’s and the two other journalists’ dismissals showed that there existed confusion between administrative and professional bodies, which made it possible to have administrative interference in the content of radio shows. Rule 7 of the “Hristo Botev” programme (see paragraph 37 below), mentioned in the dismissal orders, was an example of that, because it said that changes in a show’s content could be made solely by written order of the respective manager. The editorial board’s resolution of 5 October 1998 as to who could and who could not be an interlocutor in the show was also an example of that.
22. In conclusion, the NRTC said that it did not accept the supplanting of the preordained rules for the operation of the BNR by administrative actions and sanctions. However, that did not mean that the NRTC accepted the attempts of some journalists to place themselves above the established principles of work in the national media.
23. On 1 March 1999 the applicant brought a civil claim against the BNR, seeking annulment of the order for her disciplinary dismissal, reinstatement and lost wages. She argued, among other things, that her dismissal in connection with the show on 9 October 1998 and the statements which Ms V.N. had made during the show had been in breach of Article 39 of the Constitution, section 4 of the Radio and Television Act 1996 (see paragraphs 31 and 33 below) and Article 10 of the Convention.
24. The Sofia District Court (Софийски районен съд) held hearings in the case on 2 June, 29 September, 3 November and 15 December 1999, and 8 March, 14 April, 2 June and 13 October 2000. It heard a number of witnesses, admitted in evidence various documents, and obtained several expert reports.
25. On 13 November 2000 the Sofia District Court set the applicant’s dismissal aside and partly allowed her claim for lost wages, awarding her 578.06 Bulgarian levs, plus interest, but refused her claim for reinstatement. It found that the rules of disciplinary procedure had been breached in that the applicant had not been properly invited to explain her actions before a competent disciplinary authority. It went on to say that the order for the applicant’s dismissal did not point to the specific disciplinary offences committed by her, save for the breach of the editorial board’s resolution of 5 October 1998. However, the minutes of the board’s meeting showed that it was far from clear whether any resolution had been adopted with regard to the participation of Ms V.N. in the show. Lastly, the court found that, despite having the duty to do so under Article 189 of the Labour Code 1986 (see paragraph 39 below), the BNR had failed to consider whether the severity of the punishment corresponded to the gravity of the applicant’s offence. The order for the applicant’s dismissal was therefore unlawful and had to be set aside. She was accordingly entitled to lost wages, plus interest. However, she could not be reinstated because the term of her employment contract had come to an end on 31 December 1999, while the judicial proceedings were pending.
26. On 22 November 2000 the applicant appealed against the refusal of her claim for reinstatement and the partial refusal of her claim for lost wages. On 19 December 2000 the BNR also appealed, and on 29 January 2001 it rectified its appeal pursuant to instructions by the court. The Sofia City Court (Софийски градски съд) held two hearings. The first took place on 15 June 2001. The second, initially listed for 7 December 2001, was adjourned because on that date the court’s building was sealed off by the police due to a bomb threat, and took place on 8 May 2002.
27. On 9 July 2002 the Sofia City Court quashed the lower court’s judgment and refused the applicant’s claims. It found that the applicant had been duly asked for an explanation by a competent disciplinary authority – her line manager – prior to the imposition of her punishment. The court went on to say that the order for the applicant’s dismissal had been issued in line with the applicable requirements, had indicated the offender, the offence, the punishment, and the legal provisions on which it had been based. Moreover, the applicant had in fact committed the disciplinary offence alleged against her. By allowing Ms V.N. to in fact host her show for one hundred and thirteen minutes the applicant had not only breached employment discipline but had also grossly violated basic rules of her work, such as compliance with the resolutions of the editorial board. By trying to present Ms V.N. as a “coauthor” instead of an “interlocutor”, she had tried to circumvent the editorial board’s resolution. Under Rule 7 of the “Hristo Botev” programme (see paragraph 37 below), any changes in the content or in the organisation of shows that had already been approved could be made only by written decision of the appropriate manager. Therefore, after the editorial board had approved the show on 9 October 1998, the applicant should have informed it about the intended participation of Ms V.N. as a coauthor. By failing to do so, she had grossly breached the rules of the “Hristo Botev” programme and had accordingly correctly been given the harshest disciplinary punishment – dismissal.
28. On 17 September 2002 the applicant appealed on points of law. She raised several points, the bulk of which concerned alleged breaches of the rules of disciplinary procedure. She also asserted, based on a number of arguments concerning the lawfulness of the editorial board’s decision of 5 October 1998 and the lawfulness of the order for her dismissal, that she had not committed a disciplinary offence. One of those arguments was framed as follows:
“Disregarding ... [my] arguments concerning the lack of duly adopted rules governing the workings of the ‘Hristo Botev’ programme at the time of [my] dismissal, as well as the arguments concerning the unlawfulness of point 7 of those Rules [see paragraph 37 below] on account of its being contrary to section 4(1) and (2) of the Radio and Television Act [1996], Article 39 of the Constitution of the Republic of Bulgaria [see paragraph 31 below] and Article 10 of the [Convention], the [lower] court came to the erroneous conclusion that [I] had broken point 7 of the Rules and that [my] punishment had therefore been lawful.”
29. After hearing the appeal on 21 February 2005, in a judgment of 23 March 2005 (реш. № 346 от 23 март 2005 г. по гр. д. № 3642/2002 г., ВКС, ІІІ г. о.) the Supreme Court of Cassation (Върховен касационен съд) upheld the lower court’s judgment. In its view, that court’s ruling that the order for the applicant’s dismissal had been lawful corresponded to the evidence, which showed that the order had been issued by a competent disciplinary authority in line with the applicable rules of procedure and had been duly reasoned. The court further found that the decision to dismiss the applicant had been correct. By knowingly failing to comply with the decision that Ms V.N. should not take part in her show, the applicant had breached employment discipline within the meaning of the Labour Code 1986 (see paragraph 39 below). It was true that the BNR’s internal rules had not envisaged an editorial board, but it could not be overlooked that the meeting on 5 October 1998 had been attended by Mr I.R. and Ms M.P., both of whom had been entrusted by the directors general of the BNR and the “Hristo Botev” programme with managerial functions. Mr I.R. and Ms M.P. had indicated that they did not agree with Ms V.N.’s intended participation in the applicant’s show. Although the applicant had been aware of that, she had allowed Ms V.N. to take part in her show, thus breaching employment discipline within the meaning of Article 190 § 1 (6) of the Labour Code 1986 (see paragraph 39 below). The court went on to say that the applicant should have also been aware of the orders of the directors general of the BNR and of the “Hristo Botev” programme, which had been public and available upon request. Lastly, the court held that the applicant’s dismissal had not been contrary to Article 10 of the Convention, because that Article allowed the licensing of broadcasting enterprises. Therefore, neither its letter nor its spirit proscribed the existence of disagreements between those entrusted with the task of framing a radio’s programme and those in charge of current and operative issues. The same went for Article 39 of the Constitution and section 4 of the Radio and Television Act 1996 (see paragraphs 31 and 33 below).
30. Ms V.N. and Mr E.I., who were disciplinarily dismissed together with the applicant (see paragraph 16 above), also challenged their dismissals in court. It appears that Ms V.N.’s dismissal was eventually set aside in a judgment which became final on 10 July 2008, and that Mr E.I.’s dismissal was also eventually set aside.
31. The relevant provisions of the 1991 Constitution read as follows:
“1. Everyone is entitled to express an opinion or to publicise it through words, written or oral, sound, or image, or in any other way.
2. This right shall not be used to the detriment of the rights and reputation of others, or for the incitement of a forcible change of the constitutionally established order, the perpetration of a crime, or the incitement of enmity or violence against anyone.”
“The press and the other mass media shall be free and not subject to censorship.”
“Everyone has the right to seek, receive and impart information. The exercise of that right may not be directed against the rights and the good name of other citizens, nor against national security, public order, public health or morals.”
32. At the relevant time the operations of the BNR were governed by the Radio and Television Act 1996. In the end of November 1998 it was superseded by the Radio and Television Act 1998, which is still in force.
33. Section 4 of the 1996 Act provided that the creation and the broadcasting of radio programmes had to comply with, among others, the principles of freedom of expression and pluralism in the expression of opinion.
34. Section 46(1) provided that the BNR was a public organisation engaging in radio activities of national importance. It broadcast one international and two national programmes (section 47(1)). It was a legal person based in Sofia (section 46(2)), and an independent organisation; other bodies and authorities could not interfere with its activities except where provided for by law (section 48). Its governing bodies were the management board, the programme board and the director general (section 50(1)).
35. The editorial rights and duties of journalists employed by the BNR were to be governed by rules adopted by the BNR management board, following consultation with the BNR journalists’ trade unions (section 49(2)). Journalists’ rights could not be restricted on the basis of their political affiliations (section 49(1)).
36. The NRTC was an independent body responsible for protecting freedom of expression, the independence of radio and television operators and the interests of the audience (sections 8(2) of the 1996 Act). It was entrusted with, among other things, supervising the activities of radio and television broadcasters (section 15(1)), and with electing and dismissing the BNR director general (section 15(5)).
37. Rule 7 of the BNR “Hristo Botev” programme, as in force at the relevant time, provided that any changes in the content, the organisation or the technology of a radio show could be effected only by order of the respective manager.
38. Point 1 of order no. 4 of 9 June 1998 of the director of “Hristo Botev” provided that the hosts of live radio shows had to appear not less than twenty minutes in advance with a scenario prepared in advance and indicating the time bands and the connection of outside sources (such as mobile radio stations and telephones). They also had to acquaint the sound editor with the show’s scenario and organisation and give the editor timely and specific instructions for any necessary changes.
39. The disciplinary punishment of employees is regulated by Articles 18690 of the Labour Code 1986; Articles 19298 govern the applicable procedure. By Article 186, a failure to comply with one’s employment duties amounts to a breach of employment discipline. Article 187 sets out a nonexhaustive list of such breaches, which may consist in a failure to comply with technical or technological rules (point 3), a failure to comply with a lawful order of one’s employer (point 7), or a failure to comply with other duties stemming from statutes, statutory instruments, internal regulations or collective labour agreements, or with duties laid down upon hiring (point 10). Article 188 provides that the disciplinary punishments available are a reprimand, a dismissal warning and dismissal. In choosing which of those punishments to impose, the employer must take into account the gravity of the breach, the circumstances in which it was made, and the employee’s conduct (Article 189 § 1). Article 190 § 1 (6), as in force at the relevant time (currently Article 190 § 1 (7)), provided that an employee could be disciplinarily dismissed for serious breaches of employment discipline. Article 330 § 2 (5), as in force at the relevant time, provided that in case of disciplinary dismissal an employer was to terminate the employment without notice.
NON_VIOLATED_ARTICLES: 10
NON_VIOLATED_PARAGRAPHS: 10-1