ITEMID: 001-57772
LANGUAGEISOCODE: ENG
RESPONDENT: ESP
BRANCH: CHAMBER
DATE: 1992
DOCNAME: CASE OF CASTELLS v. SPAIN
IMPORTANCE: 2
CONCLUSION: Preliminary objection rejected (non-exhaustion);Violation of Art. 10;Not necessary to examine Art. 14+10;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: J.A. Carrillo Salcedo;R. Pekkanen
TEXT: 6. Mr Miguel Castells, a Spanish national, resides at San Sebastián (Guipúzcoa), where he is a lawyer. At the material time he was a senator elected on the list of Herri Batasuna, a political grouping supporting independence for the Basque Country.
7. In the week of 4 to 11 June 1979, the weekly magazine "Punto y Hora de Euskalherria" published an article entitled Insultante Impunidad (Outrageous Impunity) and signed by the applicant. The article read as follows:
"In a few days, at the San Fermín holiday, a year will have gone by since the murders of Germán Rodríguez atPamplona (Iruna) and of Joseba Barandiarán at San Sebastián(Donosti). The authorities have not identified the perpetrators of these crimes. They have not even acknowledged to which organisations they belong. Nor have they identified the persons who killed, between 12 and15 May 1977, Gregorio Marichalar Ayestarán, aged 63, and Rafael Gómez Jaúregui, aged 78, at Rentería, José Luis Canoat Irun and Manuel Fuentes Mesa at Ortuella; on 14 May,again in 1977, José Luis Aristizábal at San Sebastián, and,at around the same date, in the same town, IsidroSusperregui Aldekoa, over 70 years old; at the beginning ofJune, still in 1977, Javier Núñez Fernández at Bilbao;Francisco Aznar Clemente, Pedro María Martínez Ocio,Romualdo Barroso Chaparro, Juan José Castillo and Bienvenido Pereda Moral, on 3 March 1976 at Gasteiz, and,in the same year, on 7 March at Basauri, Vicente AntónFerrero, on 9 May at Montejurra, Aniano Jiménez and RicardoPellejero, in June Alberto Romero Soliño at Eibar, in September Jesús María Zabala at Fuenterrabía, in November Santiago Navas and José Javier Nuin at Santesteban and on10 July Normi Menchaka at Santurce; José Emilio Fernández Pérez, 16 years old, and Felipe Carro Flores, 15 years old, on 24 July and 25 July 1978, one at Apatomonasterio and the other at Sestao. I only mention the dead ones and the list is far from being exhaustive. These are only examples. Not one, I repeat, not one of the murders, of the interminable list of fascist murders carried out in the Basque Country (Euzkadi), has shown the slightest sign of being cleared up by the authorities. Will the individuals who assassinated Emilia Larrea, Roberto Aramburu, JosemariIturrioz, Agurtzane Arregui, Argala, José Ramon Ansa and Gladys del Estal, the most recent murders, be identified? And when I say most recent I should specify the date -9 June 1979 - because tomorrow there will be others.
And there remain the hundreds of cases, for there are hundreds of them, in which people burst in, pistols at the ready, to the bars of the villages and the suburbs (Amorebieta, Durango, Eguía, Loyola, etc.) or simply run through the streets wounding and beating up everyone they come across; the bombs left in popular meeting places(Punto y Hora, Bordatxo, Alay Bar, Santi Bar, Askatasunaetc.) or in cars, attacks whose survivors suffer the consequences for life etc.
The perpetrators of these crimes act, continue to work and remain in posts of responsibility, with total impunity. No warrant has been issued for their arrest. The description of the persons who carried out these acts has been neither drawn up or published; nor have there been any lists of suspects in the newspapers, or photokit pictures, and, far less, rewards offered to the public, or arrests, or inspections or searches of their homes. The public's help has not been sought through the media, as has happened in other cases. Indeed it is significant that such help is not even accepted in connection with these crimes. No link has been established, there have been no official communiqués full of explicit accusations and reprobation inthe press, as in other cases.
The right-wing, who are in power, have all the means at their disposal (police, courts and prisons) to seek out and punish the perpetrators of so many crimes. But don't worry, the right will not seek itself out.
Extreme right-wing organisations? Before Franco's death no one in the Basque Country thought that it was possible to secure the arrest or conviction for "unlawful association" of a single member, and far less one of the leaders, of the "Triple A", of the "Batallón Vasco-Español", of the "Batallón Guezalaga", of the ATE, of the Adolf Hitler commando, of the Francisco Franco commando, ofthe Mussolini commando, of the New Order, of Omega, of the"Movimiento Social Español", of "Acción Nacional Española"or of the "Guerrilleros de Cristo Rey". No one can believe it now either.
"ETA" members held as prisoners? Hundreds of them havebeen to prison. Persons suspected of being members of "ETA"? Thousands of them have been detained in police stations. Sympathisers? One could go on with the list forever. Yet not a single leader or member of the Triple A has been bothered.
Those responsible for public order and criminal prosecutions are the same today as they were before. And here in the Basque Country nothing has changed as far as impunity and questions of liability are concerned.
The period when Ibanez Freire was Director General of the Civil Guard, and Fraga was Minister of the Interior, wasalso a time when there was a great increase in so-called extreme right-wing activities in the Basque Country. The same phenomenon, the same coincidences are recurring now.
The increase in the activities of groups free to act asthey will is generally accompanied in the Basque Country byan increase in the strength of the security forces.
These commandos, because we have to call them something, seem totally at home in the Basque Country, in the middle of a community completely hostile to them. This is too inexplicable for there not to be an obvious explanation. They have precise information to carry out their attacks, often more detailed than that available to local people.
They have substantial files which are kept up to date. They have a considerable supply of weapons and of money. They have unlimited material and resources and operate with complete impunity. Considering the timing of their operations and the conditions in which they are carried out it can be said that they are guaranteed legal immunity in advance. Forbidding people to see this is futile.
This is important to the people. In the Basque Country it is more important than all the provisional schemes for self-government, democratic consensus and other meaningless or abstract nonsense, because it is a visible, tangible reality which confronts people on a daily basis.
Frankly, I do not believe that the fascist associations which I cited earlier have any independent existence, outside the State apparatus. In other words I do not believe that they actually exist. Despite all these different badges, it is always the same people.
Behind these acts there can only be the Government, the party of the Government and their personnel. We know that they are increasingly going to use as a political instrument the ruthless hunting down of Basque dissidents and their physical elimination. If they want to be so lacking in a sense of political vision that's their problem! But for the sake of the next victim from our people, those responsible must be identified right away with maximum publicity."
8. On 3 July 1979 the prosecuting authorities instituted criminal proceedings against Mr Castells for insulting the Government (Article 161 of the Criminal Code; see paragraph 20 below). The court with competence for the investigation procedure, the Supreme Court, requested the Senate to withdraw the applicant's parliamentary immunity, which it did by a majority on 27 May 1981.
9. On 7 July 1981 the Supreme Court charged the applicant with having proffered serious insults against the Government and civil servants (Articles 161 para. 1 and 242 of the Criminal Code). It further ordered his detention on remand, taking into account the sentences laid down for the offences in question (six to twelve years' imprisonment; see paragraph 20 below), but allowed his release on bail in view of his status as a senator and the "lack of alarm" (falta de alarma) caused by the alleged offences.
On 28 September 1981 the court varied its previous decision. It allowed the applicant's provisional release subject solely to the obligation to report to the judge at regular intervals. In addition to the circumstances already cited, it stressed that, during his questioning, Mr Castells had shown a co-operative attitude and had declared that his article had been intended merely as a political denunciation and not to insult or threaten the Government or its members.
10. On 12 December 1981 the applicant's defence counsel challenged four of the five members of the relevant division of the Supreme Court. It was submitted that their political convictions and the posts which they had held under the previous political regime disqualified them from hearing a case concerning the freedom of opinion of an individual who, like the applicant, had been a notorious opponent of the regime in question. They relied on Article 54 para. 9 of the Code of Criminal Procedure.
After several interlocutory applications, including one which resulted in a decision of the Constitutional Court on 12 July 1982 enjoining the Supreme Court to find the challenge admissible, the latter court, sitting in plenary session, dismissed the challenge on its merits on 11 January 1983. The Supreme Court took the view that although the judges had indeed sat in the Criminal Division of the Supreme Court under the previous political regime and one of them had, from 1966 to 1968, been the presiding judge in the Public Order Court, they had at that time merely applied the legislation in force.
On 4 May 1983 the Constitutional Court dismissed an appeal (amparo) which Mr Castells had lodged alleging a violation of Article 24 para. 2 of the Constitution (right to an impartial tribunal). It found that the fact that the judges in question might have political convictions differing from those of the applicant could not be regarded as being of direct or indirect relevance (interés directo o indirecto) to the solution of the dispute within the meaning of Article 54 para. 9 of the Code of Criminal Procedure.
11. In the meantime the investigation of the case had progressed. On 3 February 1982 the public prosecutor had concluded that the facts constituted an offence of proffering serious insults against the Government and demanded a prison sentence of six years and a day.
In their memorial (conclusiones provisionales) of 2 April 1982, the defence lawyers contended that the disputed article contained accurate information and did not express the accused's personal opinion, but the views of the general public. They offered to adduce evidence to establish the truth of the information. In particular they suggested that the competent authorities should produce reports on any police inquiries, detentions, prosecutions or other measures undertaken against the members of the extreme right-wing groups responsible for the attacks denounced in the article; as the facts reported were common knowledge they could not be said to be insulting. In addition, the defence lawyers requested that evidence be taken from fifty-two witnesses, including members of the Belgian, Italian, French, English, Irish and Danish parliaments and of the European Parliament, on the matter of parliamentary practice regarding the freedom of political criticism; they argued that the accused had acted in his capacity as an elected representative and in conformity with the obligations attaching thereto.
12. By decision (Auto) of 19 May 1982, the Supreme Court refused to admit the majority of the evidence put forward by the defence, on the ground that it was intended to show the truth of the information disseminated.
There were divergences in academic opinion and even in its own case-law as to whether the defence of truth (exceptio veritatis) could be pleaded in respect of insults directed at the State institutions, but the reforms of the Criminal Code then under way clarified the question: those institutions fell outside the scope of that defence and Article 461 of the Criminal Code (see paragraph 21 below) authorised it only where civil servants were involved. The evidence which the defence proposed to adduce was not therefore admissible in the proceedings pending, without prejudice to the possibility available to the accused of instituting criminal proceedings as he considered fit.
Mr Castells filed an appeal (recurso de súplica), but on 16 June 1982 the Supreme Court confirmed its decision on the ground that the accuracy of the information was not decisive for a charge of insulting the Government.
The applicant then filed an appeal (amparo) in the Constitutional Court, alleging that the rights of the defence had been disregarded. That court dismissed it on 10 November 1982, holding that the question could be resolved only in the light of the proceedings in their entirety and after the decision of the trial court.
13. The Criminal Division of the Supreme Court held a hearing on 27 October 1983 and gave judgment on 31 October. It sentenced the applicant to a term of imprisonment of one year and a day for proffering insults of a less serious kind (menos graves) against the Government; as an accessory penalty he was also disqualified for the same period from holding any public office and exercising a profession and ordered to pay costs.
It found in the first place, with regard to the objective element of the offence, that the expressions used in the article were sufficiently strong to damage the reputation of the injured parties and to reveal an attitude of contempt. As far as the subjective element was concerned, it considered that, as a senator, Mr Castells had available to him very obvious means of expression, provided for in the Assembly's rules of procedure, through which to carry out his duties of monitoring and criticising the Government's activities; as he had failed to use these means, he could not claim to have acted on behalf of his electorate. The defence's second argument, based on the aim of political criticism (animus criticandi), did not remove its defamatory purpose (animus injuriandi), but reduced the importance thereof. In the case under examination, the insults proffered with the aim of political criticism had exceeded the permissible limits of such criticism and attacked the Government's honour. It was therefore preferable to apply Article 162 of the Criminal Code, which provided for the offence of proffering less serious insults against the Government, rather than Article 161. On the question of the constitutional right to freedom of expression (Article 20 of the Constitution; see paragraph 19 below) there were limits to that right, in particular in relation to the right to honour and to a private life and the right to control use of one's likeness. Furthermore, the fact that the insult appeared in a press article suggested that it was the fruit of a more complicated intellectual process and a degree of reasoning which made it more clear and precise.
Finally, the Supreme Court confirmed its decision of 19 May 1982 regarding the admissibility of the defence of truth.
The applicant again indicated in the Supreme Court his intention of filing an appeal (amparo) against the judgment, relying inter alia on Articles 14, 20, 23 and 24 of the Constitution. He lodged his appeal on 22 November 1983.
14. The enforcement of the latter measure was nevertheless stayed by the Constitutional Court on 22 February 1984.
15. In his appeal (amparo) of 22 November 1983, Mr Castells complained that he had not been able to have the Supreme Court's judgment examined by a higher court and of the length of the proceedings.
He maintained further that the court had violated the principle of the presumption of innocence by refusing to allow him to adduce evidence. He considered it contrary to the most elementary rules of justice to convict someone - and in this case a senator - for making statements which were accurate and sufficiently important for it to be necessary to bring them to the attention of the community as a matter of urgency and in detail, without having allowed him to establish their truth.
He alleged, in addition, a breach of the principle of equality before the law (Article 14 of the Constitution), taken alone or in conjunction with the right to freedom of expression (Article 20), as other persons had published similar articles without encountering difficulties. Furthermore, he claimed that he had been the victim of a violation of his right to formulate political criticism, which he argued was inherent in Article 23 as it applied to him in his capacity as a senator. According to him, that provision, which guarantees the right to participate in public affairs, entitled him to carry out his parliamentary duties of scrutiny through any organ or means generally available.
The applicant made a further reference to Article 20 of the Constitution in the summary of his complaints (suplico).
16. In his observations of 22 March 1984, the public prosecutor noted that Article 14 guaranteed equality before the law and not equality outside the law. As regards the complaint based on Article 23, it overlapped with the preceding complaint or was based on a misunderstanding: clearly a member of parliament did not carry out his duties only in the assembly, but outside it he did not enjoy any immunity; although he could, like any citizen, criticise the action of the Government, he should not forget that the freedom of expression had its limits, fixed by the Constitution.
For his part, Mr Castells, by a letter of 21 May 1984, again offered to prove the truth of his statements, because that demonstrated "the violation by the contested judgment of the right to `receive and communicate true information by any means of dissemination', referred to in Article 20 of the Constitution". He also mentioned this right in his appeal (recurso de súplica) against the rejection of this offer by the Constitutional Court (20 July 1984) and in his observations of 21 February 1985.
17. The Constitutional Court dismissed the appeal on 10 April 1985.
In summarising the applicant's complaints at point 2 of the "As to the Law" part of its judgment, it took together, like the public prosecutor, those relating to Articles 14 and 23, without referring to Article 20: alleged violation of the right to equality before the law, guaranteed under Article 14 taken alone or in conjunction with Article 23, inasmuch as the contested decision restricted the powers of monitoring, scrutiny and criticism of a senator.
At point 6 it stated that parliamentary privileges were to be interpreted strictly as otherwise they could become instruments for infringing the rights of others; they lapsed when their holder had acted as a mere citizen, even in his capacity as a politician.
At points 9 and 10 it considered the central issue: the right to rely on relevant evidence in presenting the defence case, and in particular to plead the defence of truth in respect of an offence of the type in question. The court noted in this connection:
"In order to assess whether evidence which it is sought to adduce is relevant, it is necessary to establish a link between that evidence and the thema decidendi, which must first be determined on the basis of the parties' allegations. Except in the case of facts which are manifest or common knowledge, the court must not intervene in this regard, otherwise it will prejudge the merits, if only in part ... . It is preferable for the courts to avoid [such a preliminary assessment]; it does not however in itself infringe constitutional rights provided that the other defence rights are respected. Even though in the present case the court ought perhaps not to have anticipated its opinion on the defence of truth when assessing the relevance of the evidence, [that irregularity] therefore infringes the constitutional right to use relevant evidence - particularly where as here the decision is taken at a single level of jurisdiction - only if there has been a breach of a substantive right in issue.
... "
Article 161 of the Criminal Code had given rise to criticism among academic writers because it restricted the freedom of expression. In any event, it should be read in conjunction with Article 20 which guaranteed that freedom. In this connection it had to be accepted that criminal legislation could constitute an adequate means of regulating the exercise of fundamental rights provided that it respected the essential content of the right in question. The limits of the freedoms of information and of opinion were beyond question to be found in the area of State security, which could be jeopardised by attempts to discredit democratic institutions. In conclusion the question whether the defence of truth was or was not admissible in this field was purely one of statutory interpretation and the specific application of Article 161 in the case under review was a matter falling within the exclusive jurisdiction of the Supreme Court.
18. On 1 April 1986 the Supreme Court ruled that the term of imprisonment had been definitively served. Subsequently, the record of the conviction was annulled in accordance with Article 118 of the Criminal Code. It could therefore no longer be disclosed by investigation of the applicant's criminal record unless the request came from judges or courts in connection with a new criminal inquiry.
19. The relevant articles of the Constitution provide as follows:
"All Spanish citizens are equal before the law. Any discrimination based on birth, race, sex, religion, opinion or any other condition or personal or social circumstances shall be prohibited."
"1. The right to honour, to a private life and to a family life and the right to control use of one's likeness shall be protected.
..."
1. The following rights shall be recognised and protected:
(a) the right freely to express and disseminate thoughts, ideas and opinions by word of mouth, in writing or by any other means of reproduction;
...
(d) the right to receive and communicate true information by any means of dissemination. The right to invoke the conscience clause and that of professional confidentiality shall be governed by statute.
2. The exercise of these rights may not be restricted by any prior censorship.
...
4. These freedoms shall be limited by respect for the rights secured in this Title, by the provisions of the implementing Acts and in particular by the right to honour and to a private life and the right to control use of one's likeness and to the protection of youth and children."
"1. Citizens shall have the right to participate in public life directly or through their representatives freely elected at periodically held elections by universal suffrage.
..."
20. The Institutional Act 8/1983 of 25 June 1983 reformed the Criminal Code. It provides that the offences of insulting the Government shall be punishable by the following penalties:
"The following shall be liable to long-term prison sentences [from six years and a day to twelve years - Article 30 of the Criminal Code]:
1. Those who seriously insult, falsely accuse or threaten ... the Government ...;
2. ..."
"When the insult or threat referred to in the preceding Article is not serious, it shall be punishable by a short- term prison sentence [from six months and a day to six years - Article 30 of the Criminal Code]."
These provisions appear in a separate chapter of the Criminal Code. The chapter in question is based on the principle of authority (decision of the Supreme Court of 19 May 1982; see paragraph 12 above) and provides for a strengthened protection for the life, freedom and honour of the senior officials of the State. The offence of falsely accusing the Government was not introduced until 1983.
21. Title X of Book II of the Criminal Code defines the offences of proffering insults and making false accusations. The latter consists of accusing a person wrongly of an offence coming within the category of those which have to be prosecuted even without a complaint (Article 453 of the Criminal Code). On the other hand, an insult is any expression or action which discredits a person or exposes him to contempt, in particular by accusing him of an offence of the kind which may be prosecuted only if a complaint is laid (Articles 457 and 458 of the Criminal Code). The practical importance of the distinction is that the defence of truth is admissible for the offence of false accusation (Article 456) but not for the offence of proffering insults, except where the insults are directed against civil servants in respect of acts relating to the performance of their duties (Article 461 of the Criminal Code).
By the judgment of 31 October 1983 the Supreme Court specified that the defence of truth could not be pleaded in connection with the offence of insulting one of the senior institutions of the State: in the first place no official as such was concerned and, secondly, the institutions in question enjoyed extra protection in this field under the criminal law (see paragraphs 12 and 13 above).
VIOLATED_ARTICLES: 10


ITEMID: 001-87190
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: STEEG v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Volodymyr Butkevych
TEXT: The first applicant, Ms Caterina Steeg, is a German national who was born in 1970 and lives in Würzburg. The second applicant, Mr Ekkehard Wenger, is a German national who was born in 1952 and lives in Stuttgart.
s, may be summarised as follows.
The second applicant is Professor of Economics at the University of Würzburg. He is a founding member of the Association for the Promotion of Shareholder Democracy (Verein zur Förderung der Aktionärs-demokratie) which is committed to protecting the rights of minority shareholders in joint stock companies. The first applicant worked as a student assistant for his department.
On 30 July 1999 the first applicant, represented by A., a scientific assistant to the second applicant, bought six shares in the M. company. Between 14 July 1999 and 3 August 1999 the second applicant bought more than 200 shares in that same company. They paid some 930 German marks (DEM) per share.
On 4 August 1999 the management of the B. company, which was to take over the M. company, offered to pay ordinary shareholders of the M. company an indemnity of DEM 1,300 per share in order to avoid actions instituted by them. The first applicant accepted that offer and made a profit amounting to more than DEM 2,000. The second applicant accepted the offer for part of his shares.
On 4 July 2001 the Würzburg District Court issued a warrant under Article 102 and Article 105 § 1 of the Code of Criminal Procedure (see Relevant domestic law below) to search the first applicant’s home in Höchberg (her principal residence), her parent’s home in Duisburg (her secondary residence) and herself. It further issued another warrant to search the second applicant’s home in Stuttgart, his office at the University of Würzburg and himself. Both applicants were suspected of prohibited insider trading.
The District Court ordered the search and seizure of all documents and electronic storage media concerning the purchase of shares in the M. company between July 1999 and August 1999. In the second applicant’s case, it further ordered the search and seizure of documents concerning telephone conversations with members of the B. company, and in the first applicant’s case documents concerning information given to her either by the second applicant or by his scientific assistant A. in respect of the purchase of the shares.
The District Court observed that in a shareholders’ meeting on 16 July 1999 the M. company decided to merge with a company affiliated to the B. company. The Association for the Promotion of Shareholder Democracy, which was founded by the second applicant and was represented during the meeting by his scientific assistant A., objected to the decision and threatened to institute proceedings in court to set it aside, as no offer for a takeover of ordinary shares (as opposed to preference shares) was to be made to the shareholders of the M. company. Following negotiations with the holding company B., the latter publicly announced on 4 August 1999 a takeover offer of DEM 1,300 per share also to those holding ordinary shares in the M. company.
The District Court found that both the fact that negotiations were being conducted concerning a takeover offer and the content of those negotiations were insider information which was likely to lead to a higher stock rate when made public. The first applicant, who had not previously held any stocks in the M. company, had bought six shares in that company on 30 July 1999. As she had been a scientific assistant to the second applicant, there was a suspicion that this insider information had been disclosed to her either by the second applicant or by A., with whom she had been working in another company, and that she had used that information when buying the shares in the M. company. The second applicant, who had not previously held any shares in the M. company, had bought a total of 243 shares between 16 July and 2 August 1999. As he had spoken to the managing directors of the B. company on the telephone during that period, there was a suspicion that he had obtained knowledge of the planned offer to shareholders and had used that information when buying shares in the M. company.
The search warrants were subsequently executed. The first applicant’s home in Höchberg was searched in her presence, and her parents’ home was broken into and searched in their absence and a number of objects and documents seized. The police also searched the second applicant’s office and his home, the latter in the presence of his then 84-year-old father with whom he was living, and seized several documents and his laptop.
On 10 and 11 July 2001 the second and the first applicant respectively lodged an appeal against the search warrant and the seizures with the Würzburg Regional Court. They claimed that these measures had been unlawful. They had not had knowledge of the takeover offer made to ordinary shareholders in the M. company before that offer had been made public. This had already been confirmed by the B. company on the request of the Federal Office for the Surveillance of Trading in Securities (Bundesaufsichtsamt für den Wertpapierhandel) prior to the issuing of the search warrants.
On 26 July 2001 the Würzburg Regional Court dismissed the first and second applicants’ appeal against the search and seizure orders as ill-founded. It found that the District Court had rightly considered that there had been a suspicion of prohibited insider trading and had sufficiently specified the persons and rooms to be searched and the evidence to be searched for. The orders had not been disproportionate. Search and seizure had been appropriate and necessary measures. Awaiting the collection of further evidence, such as witness testimonies, would have entailed the risk that the evidence searched for could no longer be secured; nor had issuing a search warrant against the first applicant been disproportionate, as the criminal investigations concerned a wider serious offence and had been instituted against several suspects who could have colluded, which made it necessary to coordinate the investigation measures taken. The Regional Court further found that the seizure of the objects and documents in question had been lawful as they were possibly relevant for the criminal proceedings.
On 3 September 2001 the first and the second applicant each lodged a complaint with the Federal Constitutional Court against the decisions taken by the Würzburg District and Regional Courts. Relying notably on Article 13 of the Basic Law (see Relevant domestic law below), they complained about the searches and seizures, which they considered to breach their right to respect for their home and to be arbitrary.
In two decisions adopted on 9 September 2004 the Federal Constitutional Court declined to consider the first applicant’s (file no. 2 BvR 1542/01) and the second applicant’s (file no. 2 BvR 1541/01) constitutional complaints as they were ill-founded.
The Federal Constitutional Court found that the criminal courts had not breached the applicants’ right to respect for their home as protected by Article 13 § 1 of the Basic Law. The criminal courts’ finding that there had been a suspicion of prohibited insider trading had not been arbitrary. After the shareholders’ meeting on 16 July 1999 it had not been certain whether or not a takeover offer would be made to ordinary shareholders. Nonetheless, the applicants had bought shares in the M. company after this meeting and shortly before the public announcement of the takeover offer. The first applicant had bought the shares in cooperation with an assistant of the second applicant. In his capacity as a member of the Association for the Promotion of Shareholder Democracy, the second applicant had voiced his support for a takeover offer to be made to the ordinary shareholders as well and had been in contact by telephone with the management of the companies concerned.
The Federal Constitutional Court further found that it had not been arbitrary for the criminal courts to consider the searches as proportionate. The evidence to be searched for in accordance with the warrants was suitable to establish the circumstances in which the shares had been bought. The possibility that evidence proving knowledge of insider information would be found could not be excluded. Having regard to comparable cases, it had also not been arbitrary to consider the search ordered against the first applicant as proportionate despite the fact that she had only bought six shares. The possible damage caused amounted to more than DEM 2,000 and there had been a suspicion against several persons who could have colluded.
The decisions were served on the applicants on 20 September 2004. They are at issue in application no. 9676/05 lodged with this Court by the first applicant and application no. 10744/05 brought by the second applicant.
On 11 January 2002 the Würzburg Public Prosecutor’s Office discontinued the investigation proceedings against the applicants. It found that the evidence collected was insufficient to secure their conviction of insider trading.
On 8 June 2004 the Stuttgart District Court issued a warrant under Article 102 and Article 105 § 1 of the Code of Criminal Procedure for the search of the second applicant’s home and cars in Stuttgart, of his office at the University of Würzburg and of himself on suspicion of prohibited insider trading. It ordered the search and seizure of all documents and electronic storage media concerning the purchase and sale of shares in the A. company by the second applicant and further co-defendants in July 2002.
The District Court found that the A. company had informed its shareholders on 10 July 2002 that the A.B. limited liability company wanted to take over the shares of the minority shareholders of the A. company and was offering them an indemnity of some EUR 35 per share. On 21 August 2002 an increased offer of an indemnity of EUR 56 per share was made public. The second applicant had purchased 547 shares of the A. company for some EUR 35 on 20 August 2002. He was suspected of having obtained knowledge of the A.B. company’s intention to offer an indemnity in the higher amount from a third person (S.), who had negotiated with him with a view to obtaining his agreement to sell the shares he already had, and to have used that knowledge when purchasing the shares on 20 August 2002. His profit amounted to some EUR 10,600.
The search warrant was executed on 6 October 2004, at the same time as warrants that had been issued against several other persons. No suspicious objects or documents were found or seized.
On 5 November 2005 the second applicant appealed against the search warrant. He claimed that there had not been a reasonable suspicion of insider trading against him at the time the warrant had been issued, as S. had already told the investigation authorities that he had not informed him of the planned increased offer of an indemnity. He had bought the shares as he had previously received the public report of the A. company concerning the planned takeover of the shares of the minority shareholders and thus considered the purchase of shares to yield profits.
On 18 November 2005 the Stuttgart Regional Court dismissed the second applicant’s appeal against the search warrant as ill-founded. Referring to the exhaustive report and the documents submitted by the Federal Office for the Surveillance of Financial Services (Bundesanstalt für Finanzdienst-leistungsaufsicht) to the Public Prosecutor’s Office, it found that there had been a sufficient factual basis for a suspicion of insider trading when the District Court issued the search warrant. In particular, the fact that S. had proposed to others to persuade the second applicant to accept an offer of indemnity and that the latter had bought further shares only one day before the higher offer of indemnity was made public was sufficient to ground the suspicion of insider trading. Moreover, the documents to be seized had been described in sufficient detail in the search warrant. In view of the gravity of the offence the second applicant was suspected of, the search order had also not been disproportionate. The decision was served on the second applicant on 26 November 2005.
On 25 December 2005 the second applicant lodged a constitutional complaint with the Federal Constitutional Court. He complained about the renewed search and argued that this measure had violated his right to respect for his home and had been arbitrary.
On 9 March 2006 the Federal Constitutional Court declined to consider the second applicant’s constitutional complaint (file no. 2 BvR 104/06). It found that the second applicant had failed sufficiently to substantiate his complaint, which was therefore inadmissible. It argued that the second applicant had not informed the court of the contents of the report drawn up by the Federal Office for the Surveillance of Financial Services to which the criminal courts had referred in their decisions ordering the search. He should have done so as he had contested that there had been a sufficient suspicion of insider trading. Apart from this, the second applicant had also informed the court only selectively about the evidence on which the criminal courts had founded their suspicion against him. The Federal Constitutional Court was thus not in a position to review the criminal courts’ assessment. Moreover, the second applicant had failed to explain why it should have been obvious to the criminal courts that he could have had knowledge of the facts relevant for the trend in the share price from other sources. He does not appear to have informed the criminal courts that he had received the report of the A. company. In view of this, it could be left open whether the decisions of the criminal courts had violated the second applicant’s fundamental rights.
The decision was served on the second applicant on 20 March 2006. It is at issue in application no. 41349/06 lodged by him with this Court.
On 4 November 2005 the Stuttgart Public Prosecutor’s Office discontinued the investigation proceedings against the second applicant. It found that, even though it was likely that the second applicant had been informed of the increased takeover offer which was to be made either by S. or by one of his co-defendants and had bought the shares by using that knowledge, the investigations, including the search of the second applicant’s home, had not yielded any evidence to prove that he was guilty of insider trading.
On 29 October 2004 the Stuttgart District Court issued a further warrant to search the home, cars and person of the first applicant and of K., both qualified as witnesses, on suspicion of prohibited insider trading by the second applicant and others in respect of shares in the A. company.
The search order was executed on 30 November 2004 without any evidence being found.
On 18 November 2005 the Stuttgart Regional Court granted an appeal by K. against the search warrant issued against him. It found that the warrant had been unlawful as the searches conducted on 6 October 2004 of, inter alia, the second applicant’s and S.’s homes had not produced any results confirming the suspicion against them. Moreover, S., heard as a witness on that day, had denied having informed the second applicant of the intention to offer minority shareholders a higher indemnity. It was therefore unclear which relevant evidence should have been found when searching K.’s home after that date. On the contrary, on 27 December 2005 the Stuttgart Regional Court dismissed as ill-founded the appeal lodged by the first applicant against the search warrant issued against her.
On 3 July 2006 the Federal Constitutional Court, allowing the first applicant’s constitutional complaint, quashed the decisions of the Stuttgart District and Regional Courts. It found that these decisions violated the first applicant’s right to respect for her home. The search warrant issued by the Stuttgart District Court was not sufficiently reasoned in that it did not explain why evidence against the suspects could be found in her home. Moreover, the search warrant against the first applicant, who was not suspected of an offence, was disproportionate as, at the time the warrant was issued, there was no longer a strong suspicion against the suspects and it was not likely that evidence would be found in the first applicant’s home.
Article 13 § 1 of the Basic Law stipulates that the home is inviolable. In accordance with paragraph 2 of that Article, searches may be authorized only by a judge or, when time is of the essence, by other authorities designated by law, and may be carried out only in the manner prescribed therein.
Article 102 of the Code of Criminal Procedure, on searches in respect of the suspect, provides that a search of the home and other premises and of the person and the belongings of the suspect of a criminal offence may be made for the purpose of his apprehension or if it may be presumed that the search will lead to the discovery of evidence.
Pursuant to Article 105 § 1 of the Code of Criminal Procedure, searches may only be ordered by a judge or, in case of urgency (Gefahr im Verzug), also by the public prosecutor’s office and the officials assisting it.
Pursuant to section 14(1)(1) of the Securities Trading Act (Wertpapierhandelsgesetz) insiders shall be prohibited from taking advantage of their knowledge of insider information to acquire or dispose of insider securities for their own account or for the account or on behalf of a third party. Likewise, a third party who has knowledge of inside information shall be prohibited from taking advantage of that knowledge to acquire or dispose of insider securities for his own account or for the account or on behalf of others (section 14(2) of the Securities Trading Act). Pursuant to section 38(1)(1) of the Securities Trading Act, any person who acquires or disposes of an insider security in contravention of a prohibition under section 14(1)(1) or 14(1)(2) shall be liable to up to five years’ imprisonment or to a fine.


ITEMID: 001-85683
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF PONOMARYOV v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Violation of P1-1;Remainder inadmissible;Non-pecuniary damage - award;Pecuniary damage - award
JUDGES: Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova;Volodymyr Butkevych
TEXT: 4. The applicant, Mr Viktor Vasylyovych Ponomaryov, is a Ukrainian national who was born in 1953 and lives in the village of Rogan, Kharkiv region, Ukraine.
5. On 18 February 1991 the applicant was dismissed from the State-owned farm KhTZ.
6. After numerous unsuccessful attempts to receive salary and other payments arrears due to him from the farm, in February 1999 the applicant lodged a civil claim against the farm seeking the above payments and compensation for the delay in their payment.
7. In January 2001 the defendant was transformed into the Sad Joint-Stock Company (hereafter “the Company”) in which 25% of shares belonged to the State.
8. On 5 October 2001 the Chuguyiv Town Court (hereafter “the Chuguyiv Court”) awarded the applicant 42,086 Ukrainian hryvnas (UAH) in salary arrears, compensation and other payments from the Company. The judgment was not appealed against within the one-month statutory time-limit and became final on 5 November 2001.
9. On 30 November 2001 the Company lodged an appeal against the judgment of 5 October 2001.
10. On 10 December 2001 the bailiff service initiated enforcement proceedings.
11. By a ruling of 10 December 2001 the Chuguyiv Court left the appeal of the Company unexamined for failure to comply with procedural requirements, namely having been lodged outside the statutory time-limit without a request for renewal, failure to pay a court fee and shortcomings in the form and content of the appeal. The Company was given ten days to bring its appeal into compliance with relevant procedural law.
12. By a ruling of 10 January 2002, following the Company’s failure to comply with the court’s ruling of 10 December 2001, the Chuguyiv Court returned its appeal unexamined.
13. On 18 November 2002 the enforcement proceedings were suspended due to the insolvency proceedings against the Company initiated by the Commercial Court of Kharkiv on 25 October 2002.
14. On 12 December 2002 the State’s share in the Company was reduced from 25 % to 19.99 %.
15. By a letter of 18 December 2002, the Ordzhonikidzevsky District Bailiffs’ Service informed the applicant that the defendant Company had no funds in its account and that the procedure for the forced sale of assets belonging to the debtor was blocked by the Forced Sale of Property Moratorium Act of 26 November 2001.
16. On 4 March 2003 the Commercial Court of Kharkiv region approved a friendly settlement between the Company and its creditors and discontinued the insolvency proceedings.
17. On 24 March 2003 the enforcement proceedings were resumed.
18. On 30 January 2004, on a complaint by the applicant, the Ordzhonikidzevsky Prosecutor’s Office instituted criminal proceedings against bailiff V. for fraud in relation to the enforcement of the judgment in the applicant’s favour.
19. On 10 February 2004 the defendant Company again lodged an appeal against the judgment of 5 October 2001. It also requested that the time-limit for the appeal be renewed, on the ground that at the time of the impugned judgment of the first-instance court it had been in a difficult economic situation and had been using all its funds to pay off debts to avoid insolvency and, therefore, it had not been able to afford the court fees for an appeal.
20. On 20 February 2004 the Chuguyiv Court allowed the Company’s request for renewal of the time-limit and issued a ruling in which it repeated the Company’s grounds for the request and added that “the court considers it necessary to renew the time-limit for appeal”. The court also noted that its ruling of 20 February 2004 was not subject to appeal.
21. On 1 April 2004, on the basis of the ruling of 20 February 2004, the Ordzhonikidzevskiy Bailiffs’ Service returned the writ of execution to the Chuguyiv Court.
22. On 21 April 2004 the Kharkiv Court of Appeal reviewed the judgment of 5 October 2001, found in part against the applicant and in the other part reviewed the calculation of the requested compensation and awarded the applicant UAH 3.09.
23. On 29 April 2004 the debtor transferred to the bailiff service the amount awarded from it under the decision of 21 April 2004. According to the Government, on 22 June 2004 the applicant was informed that this amount was available for him. According to the applicant he did not receive any such information at that time.
24. On 7 September 2004 the criminal proceedings against bailiff V. were discontinued for lack of proof of a crime.
25. On 15 October 2004 the applicant lodged a cassation appeal against the decision of 21 April 2004 and requested that the time-limit for lodging an appeal be renewed on the ground that he had not been present before the Court of Appeal and he had learned about the above decision only on 6 October 2004. By a ruling of 29 October 2004, the Chuguyiv Court allowed the applicant’s request and renewed the time-limit for lodging a cassation appeal.
26. On 9 November 2005 the Supreme Court quashed the decision of 21 April 2004 on the ground that the court of appeal had considered the case in the applicant’s absence and remitted the case to the court of appeal for a fresh consideration.
27. On 1 March 2006 the Kharkiv Court of Appeal issued a new decision along the same lines as its previous decision of 21 April 2004.
28. On 12 May 2006 the Supreme Court refused the applicant’s request for leave to appeal in cassation.
29. The Act (Закон України “Про введення мораторiю на примусову реалiзацiю майна”) aims at protecting State interests in the sale of assets belonging to undertakings in which the State holds at least 25% of the share capital. A moratorium on the enforcement of judgment debts has been introduced until such time as the mechanism for the forced sale of the property of such undertakings has been improved. No time-limit has been set. Section 2 of that Act provides that the prohibition on the forced sale of property includes the execution of writs by the State Bailiffs’ Service on property belonging to such companies. The Act therefore stays the execution of all writs by the State Bailiffs’ Service against the assets of undertakings in which the State holds at least 25% of the share capital.
30. Under section 2 of the Act (Закон України “Про виконавче провадження”), the enforcement of judgments is entrusted to the State Bailiffs’ Service. Under section 85 of the Act, a creditor may make a complaint against actions or omissions of the State Bailiffs’ Service with the head of the competent department of that Service or with a local court. Section 86 of the Act entitles a creditor to institute court proceedings against a legal person, entrusted with the enforcement of a judgment, for the inadequate enforcement or non-enforcement of that judgment, and to receive compensation.
31. Section 11 of the Act (Закон України “Про державну виконавчу службу”) provides for the liability of bailiffs for any inadequate performance of their duties, and compensation for damage caused by a bailiff when enforcing a judgment. Under section 13 of the Act, acts and omissions of the bailiff can be challenged before a superior official or the courts.
32. Article 68 of the Code provided for delayed payment of the court fees or their payment by instalments. These methods of court fee payment could be allowed by a judge with regard to the property status of a party. Such an extension or delay in payment could be granted for a maximum period of three months.
33. Article 89 of the Code provided that the procedural time-limits could be extended or renewed if the court found valid reasons for such an extension or renewal. A refusal to renew a time-limit was subject to appeal.
34. Article 292 of the Code provided for a one-month period for lodging appeals against decisions of the first-instance court and a fifteen-day period for appeal against its rulings. It further provided that these periods could be renewed if the court found valid reasons for their renewal.
35. The new Code of Civil Procedure, as well as the Code of Criminal Procedure and the Code of Administrative Justice provide similar provisions as to the renewal of the procedural time-limits. The Code of Commercial Procedure, however, limits the possibility of renewal to three months.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-112430
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF ERGÜN  v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)
JUDGES: András Sajó;Françoise Tulkens;Helen Keller;Paulo Pinto De Albuquerque
TEXT: 3. The applicant, born in 1967, is a lawyer and lives in Istanbul.
4. At approximately 12 noon on 16 September 2000, while attempting to participate in a demonstration in the form of “a press conference” held in Taksim, Istanbul, by members of the Contemporary Lawyers’ Association, the applicant was arrested, with some fifty others. The applicant alleged that the large number of police officers on duty at the site of the demonstration, who were wearing special uniforms, had used disproportionate force to disperse the crowd and arrest the potential demonstrators. He claimed in particular that the police had kicked and punched him, beaten him with a stick, and sprayed tear gas in his face inside the police bus following his arrest. The Government, on the other hand, argued that the demonstrators had resisted the police and had refused to disperse despite numerous warnings.
5. The applicant was subsequently taken to the police station, along with the others who had been arrested, apparently for an identity check.
6. At 3.30 p.m. on the same day the applicant was taken to the Beyoğlu branch of the Forensic Medicine Institute for a medical examination. The doctor who examined the applicant reported bruising on his inner left knee, left ankle and inner left arm. He also noted that the injuries would render the applicant unfit for work for three days.
7. The applicant was released from police custody after the medical examination at the Forensic Medicine Institute.
8. On 18 September 2000 the applicant sought a medical examination at the Istanbul branch of the Human Rights Foundation of Turkey, in order to have the bruises which had developed on his body after his arrest recorded by an independent medical expert. The two doctors who examined the applicant noted the following on his body: a 4 x 6 cm yellowgreen bruise on the left part of the chest, a 2 x 1 cm yellow-green bruise on the left buttock, a spotted haemorrhage measuring 1.5 x 10 cm behind the left knee, a bleeding yellow-green bruise accompanied by a spotted haemorrhage measuring 3 x 3 cm on the left calf, a 4 x 0.5 cm graze on the left ankle, a 0.3 x 0.6 cm graze behind the left ankle, a scabbed wound 0.5 cm in diameter, with an area of hyperaemia 0.5 cm in width around the wound, on the right ankle. The applicant stated to the doctors that he had been kicked and punched and beaten with sticks by the police and had had tear gas sprayed in his face. He further stated that he had been coughing and had a burning sensation in his throat on account of the tear gas. The doctors reported that the injuries on the applicant’s body and his complaints regarding his throat matched his account of events, but they did not note any physical findings indicating if and how the applicant had been affected by the tear gas.
9. On 18 September 2000 twenty-seven members of the Contemporary Lawyers’ Association, including the applicant, lodged a criminal complaint with the Beyoğlu public prosecutor against the Istanbul governor, the deputy chief of police of Istanbul and the police officers on duty at the time of their demonstration. They alleged that they had all been illtreated by the police during their arrest, on the orders of the governor and the deputy chief of police.
10. It appears that on the same date the Beyoğlu public prosecutor took statements from only four of the complainants. The applicant was not summoned for a statement.
11. On 26 September 2000 the Beyoğlu public prosecutor requested the Ministry of the Interior to decide whether it would grant authorisation for prosecution of the governor and the deputy chief of police. There is no further information in the case file in relation to this request.
12. On an unspecified date the public prosecutor further requested the Istanbul governor to decide whether authorisation would be granted to prosecute the six police officers who had been identified from various photographs and video footage as having carried out the complainants’ arrests. Only five of the lawyers who had lodged the criminal complaint on 18 September 2000 were indicated as complainants, not including the applicant.
13. On 21 December 2000 the Istanbul governor decided not to grant authorisation for the prosecution of the six police officers, due to lack of sufficient evidence in support of the allegations of ill-treatment. The governor indicated in his decision that despite warnings by the police the demonstrators, who had gathered illegally without obtaining permission, had refused to disperse, and the police had therefore been obliged to use some degree of force to disperse them and restore public order.
14. On an unspecified date two of the complainants objected to the decision of 21 December 2000.
15. On 17 April 2001 the Istanbul Regional Administrative Court upheld the objection, holding that the evidence in the case file was sufficiently strong to require an investigation. It therefore decided to grant authorisation for the prosecution of the relevant police officers.
16. On 11 May 2001 the Beyoğlu public prosecutor filed a bill of indictment with the Beyoğlu Criminal Court against the six police officers in question, charging them with ill-treatment under Article 245 of the former Criminal Code. Only five of the twenty-seven lawyers who had filed the complaint of 18 September 2000 were indicated as complainants in the bill of indictment, and they did not include the applicant.
17. On 14 January 2003 the applicant lodged a petition with the Beyoğlu public prosecutor’s office requesting information as to the outcome of the investigation of his complaints.
18. The public prosecutor informed the applicant on the same date that criminal proceedings had been brought against four female and two male police officers (case no. 2001/1035 E.) following complaints by five lawyers from the Contemporary Lawyers’ Association. The public prosecutor did not give any information as to why no action had been taken on his complaints.
19. On 4 February 2003 the applicant made an application to the Beyoğlu Criminal Court, requesting leave to join the criminal proceedings which were pending against the six police officers as a civil party, in the absence of any separate proceedings in connection with his complaints.
20. Also on 4 February 2003 the Beyoğlu Criminal Court dismissed the applicant’s request to join the proceedings, as his name was not included in the bill of indictment as a victim.
21. On 6 March 2003 the Beyoğlu public prosecutor took a statement from the applicant for the first time, in relation to the complaints he had made on 18 September 2000. In his statement, the applicant complained that the relevant authorities had failed to take any action on his complaints for two and a half years, and requested the identification and punishment of the officers responsible for this delay.
22. On 10 March 2003 the Beyoğlu public prosecutor filed a further bill of indictment with the Beyoğlu Criminal Court against the same six police officers previously indicted under case no. 2001/1035 E., this time charging them with inflicting illtreatment on the applicant. The public prosecutor relied on the findings in the medical reports of 16 and 18 September 2000 as evidence of ill-treatment.
23. On an unspecified date the applicant’s case was joined to case no. 2001/1035 E.
24. At a hearing held on 1 July 2003 the applicant stated that he had not been given an opportunity by the public prosecutor to identify the police officers who had illtreated him. He stated that none of the four female officers charged in respect of his complaints had used any force against him. He was not 100% sure about the remaining two male officers, no confrontation procedure having taken place with the latter or with any witnesses.
25. At the next hearing, held on 23 October 2003, only one of the defendant male officers was present, namely G.F.K. The applicant stated that G.F.K. resembled one of the police officers who had kicked him during the demonstration, but he could not be 100% certain after so much time had passed.
26. On 28 September 2004 the Beyoğlu Criminal Court acquitted the police officers of the charges of ill-treatment of the applicant, as the applicant could not identify them as the perpetrators. The court held in relation to one of the male defendants, A.C., that he had been on leave on the date of the demonstration.
27. On 17 November 2004 the applicant appealed to the Court of Cassation. He stated that he had informed the first-instance court from the very beginning that the four female defendants had not used any force against him. Moreover, at the hearing held on 23 October 2003, he had been able to identify one of the male defendants, G.F.K., albeit with some doubts, which should nevertheless have been sufficient to convict G.F.K. when combined with other evidence. As regards the defendant A.C., he protested about how it could happen that a police officer initially identified by the authorities as having been on duty could later be found to have been on leave on the relevant day. Lastly, he complained that the public prosecutor had made no efforts to duly identify the officers who had illtreated him, or to collect the relevant evidence in a timely manner, in order to bring about their punishment. The additional indictment prepared in his respect three years after the incident was, therefore, no more than a mere formality.
28. On 6 November 2006 the Court of Cassation upheld the judgment of 28 September 2004 in so far as it concerned the applicant, without responding to any of his objections.
29. In the meantime, on 17 November 2000, the Beyoğlu public prosecutor had brought charges against demonstrators who had been arrested on 16 September 2000, including the applicant, for violation of the Meetings and Demonstration Marches Act (Law no. 2911).
30. In a judgment dated 28 March 2001, the Beyoğlu Criminal Court acquitted the applicant and his co-accused of the above-mentioned charges, finding that the demonstrators had exercised their democratic rights without committing any offences. The first-instance court also noted that the police had learned in advance that the press conference was being planned and had therefore taken the necessary security measures.
31. On 4 June 2001 the applicant brought a case before the Eyüp Assize Court seeking compensation under Law no. 466 on the payment of compensation to persons unlawfully arrested or detained, (“the Unlawful Detention (Compensation) Act”) in relation to his arrest and detention for approximately five hours on 16 September 2000.
32. On 21 October 2002 the Eyüp Assize Court rejected the applicant’s request. It held that the applicant had been taken to the police station merely to determine his identity, without being taken into detention, and that he had been released as soon as he had had a medical examination. He was therefore not entitled to seek compensation under Law no. 466.
33. On 25 February 2005 the Court of Cassation upheld the judgment of the Eyüp Assize Court. The Court of Cassation’s decision was served on the applicant on 11 April 2005.
VIOLATED_ARTICLES: 3


ITEMID: 001-76701
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF ACUN AND YUMAK  v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
JUDGES: Peer Lorenzen
TEXT: 5. The applicants were born in 1944 and 1951 respectively and live in Antalya.
6. On 10 December 1997 the General Directorate of National Airports expropriated a plot of land belonging to the applicants. A committee of experts assessed the value of the plot of land and the relevant amount was paid to the applicants when the expropriation took place.
7. On 30 December 1997 the applicants filed an action with the Antalya Civil Court of First-instance requesting additional compensation. On 20 April 1998 the First-instance court awarded them additional compensation plus interest at the statutory rate.
8. On 21 February 2000 the Court of Cassation quashed the judgment of the Antalya Civil Court of First-instance, finding that the amount awarded was too high.
9. On 22 December 2000 the Antalya Civil Court awarded the applicants additional compensation of 8,185,550,750 Turkish Liras (TRL) (approximately 5,100 euros (EUR)) plus interest at the statutory rate applicable at the date of the court’s decision, running from 19 December 1997, the date on which the title deed to the land had been transferred. The judgment of the court became final on 18 January 2001.
10. On 12 January 2001 the authorities paid the applicants the sum of TRL 21,896,872,000 (approximately EUR 13,700), including interest.
11. The relevant domestic law and practice are set out in the Aka v. Turkey judgment of 23 September 1998 (Reports of Judgments and Decisions 1998-VI, pp. 2674-76, §§ 17-25).


ITEMID: 001-91290
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF JAŁOWIECKI v. POLAND
IMPORTANCE: 3
CONCLUSION: Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Remainder inadmissible;Violation of Art. 6-1+6-3;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient
JUDGES: David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
TEXT: 5. The applicant was born in 1946 and lives in Stronie Śląskie.
6. On 3 August 1997 the Law of 11 April 1997 on disclosing work for or service in the State’s security services or collaboration with them between 1944 and 1990 by persons exercising public functions (ustawa o ujawnieniu pracy lub służby w organach bezpieczeństwa państwa lub współpracy z nimi w latach 1944-1990 osób pełniących funkcje publiczne) (the “1997 Lustration Act”) entered into force.
7. On 14 April 2004 the applicant, a candidate for the European Parliament, declared that he had not collaborated with the communist-era secret services. He was subsequently elected as a Member of the European Parliament.
8. On 9 December 2004 the Warsaw Court of Appeal (Sąd Apelacyjny) decided to institute lustration proceedings against the applicant following a request made by the Commissioner of the Public Interest (Rzecznik Interesu Publicznego) on the grounds that the applicant had lied in his lustration declaration by denying that he had cooperated with the secret services.
9. On 17 February 2006 the Warsaw Court of Appeal, acting as the firstinstance lustration court, found that the applicant had submitted an untrue lustration declaration since he had been an intentional and secret collaborator with the State’s secret services. The court established that the applicant had met on probably two occasions in 1973 with agents of the secret services and had agreed to help them as a consultant.
10. The applicant appealed against the decision. He submitted that he had never collaborated with the secret services and the meeting in question had been in connection with the preparation of an article. The applicant also referred to his subsequent activity in the “Solidarność” movement for which he had been persecuted and detained by the communist authorities. Subsequently, he was allowed to leave Poland and between 1985 and 1994 he was a deputy of the Polish Section of Radio Free Europe in Munich.
11. On 6 June 2006 the Warsaw Court of Appeal, acting as the secondinstance lustration court, upheld the impugned judgment.
12. On 1 February 2007 the Supreme Court (Sąd Najwyższy) dismissed the applicant’s cassation appeal. That decision was notified to the applicant on 8 March 2007.
13. A detailed rendition of the provisions of the relevant domestic law is set out in the Court’s judgment in the case of Matyjek v. Poland, no. 38184/03, ECHR 2007...
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
6-3


ITEMID: 001-58203
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: GRANDCHAMBER
DATE: 1998
DOCNAME: CASE OF OMAR v. FRANCE
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Costs and expenses partial award - Convention proceedings
JUDGES: John Freeland;N. Valticos
TEXT: 8. Mr Cheniti Omar, an Algerian national who was born in 1931, is retired and lives in Lyons.
His two sons, Hassane and Kamal Omar, who are also Algerian nationals, and were born in 1959 and 1962 respectively, were building workers at the material time.
9. The three applicants were charged in October 1989 with aiding and abetting the investment, concealment or conversion of funds derived from drug trafficking. Cheniti Omar was detained on remand from 13 October to 3 November 1989 and Kamal and Hassane Omar from 13 October to 8 December 1989. On release they were placed under judicial supervision.
10. On 14 June 1990 the investigating judge appointed an expert to inspect the accounts of a number of firms and those of the Omar family. The expert filed his main report on 8 March 1991 and a supplementary report on 29 April 1991.
11. By an order of 23 May 1991 the applicants were committed for trial in the Lyons Criminal Court, which, in a judgment of 19 November 1991, sentenced Cheniti Omar to four years’ imprisonment, forty-two months of which were suspended, and Kamal and Hassane Omar to five years’ imprisonment each. It also issued warrants for their arrest.
The court held, inter alia, that the offence of laundering the proceeds of drug trafficking had been made out by the fact that the accused were unable to give convincing explanations regarding the source of the family’s considerable income. The expert had noted the existence of sixty-seven bank accounts containing a total of more than three million francs, whose origin could not be explained solely by the activity of the trading or property companies owned by the accused, notwithstanding their assertion during the investigation that they had accumulated the money by not declaring their earnings to the inland revenue.
12. The three applicants appealed against the above judgment and requested a second expert opinion on their accounts.
13. On 1 October 1992 the case was heard at an adversarial hearing attended by the accused.
14. In a judgment of 16 February 1993 the Lyons Court of Appeal fully upheld the impugned judgment with regard to the five-year prison sentences imposed on Kamal and Hassane Omar and raised Cheniti Omar’s sentence to five years. It also issued warrants for the arrest of each of the three applicants, with a view to ensuring that they would serve the sentences imposed on them. They, although duly informed of the date on which the judgment would be delivered, were not in court.
15. Acting through a lawyer at the Court of Cassation, the three applicants lodged an appeal on points of law within the time-limit of five clear days laid down by Article 568 of the Code of Criminal Procedure (see paragraph 21 below). None of the applicants complied with the arrest warrants issued, but Cheniti Omar was arrested by the police at his place of work on 27 May 1993 and committed to prison pursuant to the warrant for his arrest.
16. On 7 February 1994 the Court of Cassation declared the appeal inadmissible on the ground that:
“It follows from the general principles of criminal procedure that a convicted person who has not complied with a warrant for his arrest is not entitled to act through a representative in order to lodge an appeal on points of law. It cannot be otherwise unless evidence has been supplied of circumstances making it absolutely impossible for him to surrender to custody at the appropriate time. As no such evidence has been supplied by the three appellants, against whom arrest warrants were issued after they had appeared in court for the hearing, their appeal, which has been lodged by an attorney practising in the Court of Appeal, must be declared inadmissible.”
17. In April and September 1994 Kamal and Hassane Omar were arrested and committed to prison pursuant to the warrants for their arrest.
18. On 15 and 17 May 1995 the prefect of the Rhône département issued deportation orders against them.
19. In French law an appeal on points of law, which is an exceptional remedy, may be lodged by any person who has an interest in doing so and gives notice within the time-limit, against any judicial decision given at last instance.
20. Article 576 of the Code of Criminal Procedure, which lays down the formalities to be observed in connection with appeals on points of law, provides:
“Notice of an appeal on points of law must be given to the registrar of the court which has delivered the decision being challenged.
It must be signed by the registrar and by the appellant himself or by an attorney (avoué) of the court which has given judgment or by a specially authorised agent. In the last-mentioned case, the authority to act shall be annexed to the document drawn up by the registrar…
…”
21. Article 568 of the Code of Criminal Procedure provides:
“The prosecution and all parties shall have five clear days after the date on which the impugned decision was given in which to lodge an appeal on points of law.”
22. Article 569 of the Code of Criminal Procedure provides:
“During the time allowed for an appeal on points of law and, where such an appeal has been lodged, until the Court of Cassation delivers judgment, execution of the judgment of the Court of Appeal shall be stayed, except in respect of orders concerning civil matters, and unless the Court of Appeal upholds the warrant issued by the trial court pursuant to Article 464-1 or Article 465, first sub-paragraph, or unless it issues a warrant itself under the same conditions and according to the same rules.”
23. The suspensive effect of an appeal on points of law is derived from statute and may therefore likewise be restricted by statute, particularly in the interests of speedier and more effective punishment. That is the case where an arrest warrant has been issued by the trial court (see, to that effect, B. Bouloc, Précis de procédure pénale, Dalloz, 16th edition, 1996, § 739).
24. Article 583 of the Code of Criminal Procedure provides:
“If a person sentenced to a term of imprisonment of more than six months has not surrendered to custody and has not obtained from the court which convicted him exemption, on or without payment of a surety, from the obligation to surrender to custody, his right to appeal on points of law shall be forfeit.
The memorandum of imprisonment or the judgment granting exemption shall be produced before the Court of Cassation not later than the time when the case is called for hearing.
For his appeal to be admissible, it is sufficient for the appellant to establish that he has surrendered to custody at a prison, either in the place where the Court of Cassation sits or in the place where sentence was passed. The governor of that prison shall admit him there on the order of the Principal Public Prosecutor at the Court of Cassation or of the head of the public prosecutor’s office at the court of trial or appeal.”
25. The Court of Cassation has ruled on a number of occasions that an appeal lodged by the representative of a convicted person who has not complied with a warrant for his arrest is inadmissible (Cass. crim. 10 December 1986, Dalloz 1987, p. 165). But the convicted person may give notice himself of his intention to appeal (Cass. crim. 7 November 1989, Bull. Crim. no. 397), subject to the provisions of Article 583, reproduced above.
26. The Criminal Division of the Court of Cassation considers that an appeal is admissible in the following two situations:
(a) where, instead of acting through a representative, the appellant signs the notice of intention to appeal in person (Cass. crim. 28 June 1978, Bull. crim. no. 57) by reporting to the registry before the warrant has been executed (Cass. crim. 7 November 1989, Bull. crim. no. 397) and accepting the risk of being arrested by mentioning his exact address in the notice (Cass. crim. 13 May 1985, Bull. crim. no. 180; Cass. Crim.7 September 1993, Bull. crim., p. 263, confirmed by a decision of 15 February 1994 published in the Recueil Dalloz 1994, Somm., p. 187);
(b) where, when acting through a representative, in accordance with Article 576 of the Code of Criminal Procedure, he can prove that there were “circumstances that made it absolutely impossible for him to surrender to custody at the appropriate time” (Cass. crim. 21 May 1981, Bull. crim. no. 168; Cass. crim. 19 January 1984, Bull. crim. no. 27; Cass. crim. 8 March 1985; Cass. crim. 8 March 1996, Bull. crim. no. 94).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-80878
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: AUPEK v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Gábor Aupek, is a Hungarian national who was born in 1966 and lives in Ercsi. He was represented before the Court by Mr I. Tóth, a lawyer practising in Budapest.
On 26 October 1998 the applicant, a truck driver, was interrogated as a suspect for having negligently caused, in a multiple road accident, the death of six people and the serious injury of five others, three of whom became permanently disabled. In the ensuing proceedings, the applicant was assisted by defence counsel of his choice. On 2 March 1999 a bill of indictment was preferred.
After several hearings at which numerous witnesses testified and the opinions of two medical and four technical experts were obtained, on 9 April 2002 the Miskolc District Court acquitted the applicant. On 6 November 2002 the Borsod-Abaúj-Zemplén County Regional Court quashed this judgment as unfounded; the bench included Dr K., Dr M. and Dr D.
In the resumed proceedings (megismételt eljárás), the District Court held four hearings. On 6 May 2004 it found the applicant guilty as charged. It held that, apart from the responsibility of another driver who had died in the multiple collisions, the accident had essentially been caused by the applicant’s failure to maintain the brakes of his truck and his grossly negligent driving. The applicant’s offence was punishable with two to eight years’ imprisonment. The District Court took account of the protraction of the proceedings as an important mitigating factor (nyomatékos enyhítő körülmény) and sentenced him to three and a half years’ imprisonment and a four-year prohibition on driving.
The applicant appealed, seeking an acquittal, pleading that the judgment was ill-founded.
On 13 October 2004 the Regional Court, again with the participation of Drs M. and D., upheld the applicant’s conviction but reduced his sentence to two and a half years’ imprisonment and a three-year prohibition on driving. The court reviewed the entirety of the proceedings and the first-instance judgment, and held that the first-instance proceedings had been lawful. Furthermore, it considered that the findings of fact were not ill-founded, within the meaning of section 351(2) of the New Code of Criminal Procedure, and were thus suitable for appellate review without taking further evidence. This consideration enabled the court to hold deliberations in camera, in application of section 360(1) of the Code of Criminal Procedure, without the attendance of either the defence or the prosecution.
The applicant states that this judgment was served on his lawyer only on 17 November 2004. However, on 27 October 2004 he had already been called upon to start serving his sentence on 22 November 2004. His request to have the commencement of his sentence postponed on the grounds of his impaired health, as a consequence of the injuries he himself had suffered in the accident, was to no avail.
Act no. XIX of 1998 on the [New] Code of Criminal Procedure provides insofar as relevant as follows:
“(3) c) In first or second-instance proceedings which must be repeated because of having been quashed, any judges shall be ineligible (kizárt) who participated in the adoption of the decision to quash or in the adoption of the decision which has been quashed because of ill-foundedness.”
“(3) An appeal may concern questions of fact or law.”
“(1) The second-instance court shall base its decision on the facts as established by the first-instance court unless the first-instance judgment is ill-founded....
(2) The first-instance judgment is ill-founded if:
a) the facts have not been explored;
b) the first-instance court has failed to establish the facts or the findings of fact are deficient;
c) the findings of fact are in contradiction with the contents of the documents;
d) the first-instance court has drawn incorrect conclusions from the findings of fact in regard to a further fact.”
“(2) In order to eliminate the ill-foundedness of the first-instance judgment, evidence may be taken if the findings of fact have not been established or are deficient. Evidence shall be taken ... at a hearing.”
“(1) Within 30 days of receiving the file, the president of the panel in charge shall schedule, in order to deal with an appeal, deliberations in camera (tanácsülés), a public session (nyilvános ülés) or a hearing (tárgyalás). ...”
“(1) The second-instance court shall hold a public session, if – the first-instance judgment being ill-founded – the complete and/or correct findings of fact may be established from the contents of the file or through drawing factual conclusions, or if the defendant must be heard in order to clarify the circumstances relevant for imposing the sentence.
(2) The second-instance court shall summon to the public session those persons whose hearing it deems necessary ...”
“(1) The second-instance court shall notify the public prosecutor and – if they are not summoned – ... the defendant and his lawyer of the public session. ...”
“(2) In order to take evidence, a hearing (tárgyalás) ... shall be scheduled.”
“(II) b) [The second instance court] ... shall quash the judgment of the first instance court and order that court to repeat the proceedings if ... a statutorily ineligible (kizárt) judge ... has participated in its adoption ...”
“(1) The court’s final decision on the merits is susceptible to a [Supreme Court] review (felülvizsgálat) if ...
c) the decision has been adopted amidst procedural irregularities within the meaning of section 373(1) subparagraphs II to IV.”


ITEMID: 001-86105
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF ROLGEZER AND OTHERS v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 5. The applicants live in the village of Naumovka in the Tomsk region in the vicinity of a radiochemical plant of the Siberian Chemical Industrial Complex (hereinafter “the plant”), owned and operated by the State.
6. On an unspecified date in July 1997 the applicants sued the plant for compensation for the damage to their health caused by its activity. They also sought an injunction banning the burial ground disposal of nuclear waste. On 27 July 1997 the Seversk Town Court of the Tomsk Region registered the statement of claim and listed the first hearing for 3 November 1997.
7. As the Town Court was situated in the area with restricted access, the court asked the applicants to provide personal information necessary to prepare a pass for them.
8. The applicants did not appear at the hearing of 3 November 1997. Their representatives were present. The Town Court ordered an expert examination. On 9 December 1997 the Tomsk Regional Court quashed the decision because it had been taken in the applicants’ absence.
9. On 28 April 1998 the applicants provided their personal information and were issued with a pass by the Seversak Town Administration.
10. At the hearing of 15 May 1998 the applicants modified their claims. They challenged the exploitation licence granted to the plant by the Tomsk Regional Government and claimed compensation in respect of non-pecuniary damage. The Tomsk Regional Government was cited as co-defendant and the hearing was adjourned until 14 July 1998.
11. On 14 July 1998 the applicants did not appear and the hearing was adjourned until 31 August 1998.
12. On 31 August 1998 only two plaintiffs came to the court and the hearing was adjourned until 21 October 1998.
13. On 21 October 1998 the applicants again modified their claims and asked the court to call witnesses. The hearing was adjourned until 24 November 1998.
14. Hearings were held on 24 November and 7 December 1998.
15. On 7 December 1998 the Seversk Town Court of the Tomsk Region ordered the Ministry of Public Health to perform an expert examination at the defendant’s request and stayed the proceedings. On the same day the case file was sent to the Ministry of Public Health.
16. On 29 January 1999 the Tomsk Regional Court upheld the decision of 7 December 1998 on appeal.
17. During the following three years the Town Court sent ten warnings to the Ministry of Public Health, asking it to perform the examination or, if it was not possible, to return the case file to the court.
18. On 22 April 2002 the Ministry of Public health returned the case file to the Town Court, stating that it had not been possible to perform the examination because the defendant had not paid for it. On the same day the Town Court resumed the proceedings.
19. At the hearing of 26 June 2002 the applicants withdrew their claims against the Tomsk Regional Government and amended their claims against the plant. The hearing was adjourned until 4 July 2002.
20. The Town Court held hearings on 4 and 15 July 2002. On 15 July 2002 the Seversk Town Court of the Tomsk Region dismissed the applicants’ claims as unsubstantiated.
21. On 5 November 2002 the Tomsk Regional Court upheld the judgment on appeal.
VIOLATED_ARTICLES: 6


ITEMID: 001-97201
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF EVRİM İNŞAAT A.Ş. v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 4. The applicant company, Evrim İnşaat A.Ş., is a construction firm operating in Istanbul.
5. On 10 June 1987 the applicant company signed a contract with a cooperative called Ülkü Kent Yapı Kooperatifi (“the cooperative”) for the construction of dwellings on land belonging to the latter.
6. In November 1991 the applicant company completed the construction of 65% of the project. However, following the election of a new board of directors by the general assembly of the cooperative, the applicant company’s contract was terminated by the cooperative.
7. On 22 July 1992 the cooperative brought an action in the 5th Chamber of the Istanbul Commercial Court (“the first case”) claiming damages from the applicant company on the ground that it had failed to fulfil the terms of the contract. The cooperative argued that the construction of the dwellings should have been completed by 31 August 1991, whereas the applicant company had only done 65% of the work by November 1991.
8. On the same date the applicant company brought a counter action in the 7th Chamber of the Istanbul Commercial Court (“the second case”) claiming damages from the cooperative. The applicant company argued that the cooperative had terminated the contract without giving any reasons.
9. On an unspecified date the two cases were joined by the 5th Chamber of the Istanbul Commercial Court. In the course of the proceedings the court sought expert opinions five times, which caused substantial delays. For example, on 23 June 1993 the court decided to obtain an expert opinion on the dispute. The case file was transmitted to the experts on 10 September 1993 but their report was not submitted to the court until 13 December 1995.
10. On 12 May 1999, in the first case, the Istanbul Commercial Court ruled in favour of the cooperative and allowed part of its claim for damages. The parties appealed.
11. On 22 December 1999, in the second case, the Istanbul Commercial Court dismissed the applicant company’s claim for damages, holding that it had failed to prove the damage caused by the termination of the contract by the cooperative.
12. On 15 June 2000 the Court of Cassation upheld the lower court’s judgment in the first case. The applicant company requested rectification of that decision.
13. On 8 December 2000 the Court of Cassation ruled in favour of the applicant company and quashed its decision of 15 June 2000. The case was remitted to the lower court.
14. On 19 March 2001 the Istanbul Commercial Court decided to obtain a new expert opinion on the matter. This opinion was submitted to the court on 3 May 2001.
15. On 12 December 2001 the Istanbul Commercial Court ruled in favour of the applicant company and ordered the cooperative to pay 1,806,424,884 Turkish liras. The cooperative appealed.
16. On 30 September 2002 the Court of Cassation upheld the above judgment. That decision was sent to the Istanbul Commercial Court on 30 October 2002 and was served on the applicant on 14 March 2003.
17. On 4 June 2003 the applicant company brought an action in the Istanbul Commercial Court (Istanbul Asliye Ticaret Mahkemesi) against the cooperative requesting additional compensation (munzam zarar), under Article 105 of the Code of Obligations, for the damage it had sustained as a result of the low interest rate applied to the debt.
18. On 30 December 2005 the Istanbul Commercial Court dismissed the action, holding that the applicant company had failed to prove the alleged damage. The applicant company appealed. On 20 June 2007 the Court of Cassation upheld the judgment. On 17 March 2008 the Court of Cassation dismissed a request by the applicant company for rectification.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-104858
LANGUAGEISOCODE: ENG
RESPONDENT: GRC
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF KONSTAS v. GREECE [Extracts]
IMPORTANCE: 3
CONCLUSION: No violation of Art. 6-2;Violation of Art. 6-2;Violation of Art. 13;Remainder inadmissible;Non-pecuniary damage - award
JUDGES: Christos Rozakis;Flogaitis;George Nicolaou;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen;Spyridon Flogaitis
TEXT: 6. The applicant was born in 1946 and lives in Athens.
7. From 1985 he was a professor of international relations at the Panteion University in Athens. From 1990 to 1995 he was President of the University. At the time of the 1996 general elections the applicant was appointed Press Minister ad interim. From 1997 to 1999 he was Minister Plenipotentiary to the Council of Europe.
8. In September 1998 an administrative investigation into the pre-1997 financial management of the Panteion University was ordered by the university authorities. The resulting report was submitted to the public prosecutor at the Athens Court of Appeal, who brought criminal proceedings against fifty-four members of the University’s teaching staff who had been President or Vice-President in the period 1992 to 1998, including Mr Konstas. The applicant was charged with being an accomplice to forgery, defrauding the State of more than fifty million drachmas (approximately 146,000 euros (EUR)), misrepresentation and misappropriation of public funds. By decision of the public prosecutor at the Athens Court of Appeal, he and eighteen other accused were immediately committed to stand trial (summons no. 2284/2005). The case attracted considerable media attention.
9. On 7 September 2005 the Indictment Division of the Athens Court of Appeal endorsed the public prosecutor’s decision and decided to drop the criminal charges against some of the accused. As to the applicant, it considered that he had “played a major role in the commission of the offences” (decision no. 1969/2005).
...
12. On 6 June 2007 the Athens Assize Court sentenced the applicant and nine others to 14 years’ imprisonment for misappropriation of public funds, fraud against the State and misrepresentation (judgment no. 2444/2007). Mr Konstas immediately appealed and the Athens Assize Court ordered a stay of execution of his sentence pending the judgment on appeal.
...
14. On 11 June 2007, during a plenary debate in the Greek Parliament, the Deputy Minister of Finance referred to the proceedings in question, stating that certain opposition MPs had been heard by the Athens Assize Court as witnesses for the defence. In particular, he said:
“Who are these incorruptible people? The denigrators, the renowned MPs of the Socialist Party (PASOK) and former PASOK Ministers who rushed to the defence of the Panteion bunch of crooks? Were they or were they not your personal and political friends? Didn’t you appoint them acting Ministers for the Press, Ministers Plenipotentiary to the Council of Europe, when the Panteion scandals were coming to light? They were your friends, dear colleagues, and you hastened to defend them before the Parliament. You even steal from each other. According to the newspaper ’To Vima’, your friends even stole money from Mr Simitis [a former Prime Minister]!”
15. On 2 July 2007, during a plenary debate in Parliament, the Prime Minister referred to the case saying that it was “an unprecedented scandal of deliberate and planned embezzlement of eight million euros for the benefit of those involved, to the detriment of Panteion University”.
16. On 12 February 2008, addressing the opposition in Parliament, the Minister of Justice said:
“Remember the Panteion scandal. The Greek courts boldly and resolutely convicted all those you were protecting all this time.”
17. According to the case file, the case is still pending before the Athens Court of Appeal. Judgment no. 2444/2007 of the Athens Assize Court was finalised on 4 November 2009. ...
18. The relevant Articles of the Civil Code read as follows:
“Any person whose personal rights are unlawfully infringed shall be entitled to bring proceedings to enforce cessation of the infringement and restraint of any future infringement. Where the personal rights infringed are those of a deceased person, the right to bring proceedings shall be vested in his spouse, descendants, ascendants, brothers, sisters and testamentary beneficiaries.
In addition, claims for damages in accordance with the provisions relating to unlawful acts shall not be excluded.”
“In the cases provided for in the two preceding Articles, the court may, in the judgment it gives on the application of the person whose right has been infringed, and regard being had to the nature of the infringement, also order the infringer to make reparation for the plaintiff’s non-pecuniary damage. Such reparation shall consist in the payment of a sum of money, publication of the court’
19. Sections 104 and 105 of the Introductory Law to the Civil Code read as follows:
“The State shall be liable, in accordance with the provisions of the Civil Code concerning legal persons, for acts or omissions of its organs regarding private-law relations or State assets.”
“The State shall be under a duty to make good any damage caused by the unlawful acts or omissions of its organs in the exercise of public authority, except where the unlawful act or omission is in breach of an existing provision but is intended to serve the public interest. The person responsible shall be jointly and severally liable, without prejudice to the special provisions on ministerial responsibility.”
20. The above section establishes the concept of a special prejudicial act in public law, creating State liability in tort. This liability results from unlawful acts or omissions. The acts concerned may be not only legal acts but also physical acts by the administrative authorities, including acts which are not in principle enforceable through the courts (Kyriakopoulos, Interpretation of the Civil Code, section 105 of the Introductory Law to the Civil Code, no. 23; Filios, Contract Law, Special Part, volume 6, Tort, 1977, para. 48 B 112; E. Spiliotopoulos, Administrative Law, 3rd edition, para. 217; Court of Cassation judgment no. 535/1971, Nomiko Vima, 19th year, p. 1414; Court of Cassation judgment no. 492/1967, Nomiko Vima, 16th year, p. 75). The admissibility of an action for damages is subject to one condition, namely, the unlawfulness of the act or omission.
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-2
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-2