ITEMID: 001-58036
LANGUAGEISOCODE: ENG
RESPONDENT: NOR
BRANCH: CHAMBER
DATE: 1997
DOCNAME: CASE OF ERIKSEN v. NORWAY
IMPORTANCE: 3
CONCLUSION: No violation of Art. 5-1;No violation of Art. 5-3
TEXT: 6. The applicant is a Norwegian citizen. In 1965 he was involved in a traffic accident in which he suffered serious brain damage. He subsequently showed a distinct tendency to become aggressive.
7. In 1967 he was convicted of offences under Articles 227, 228 and 292 of the Norwegian Penal Code (threatening behaviour and inflicting bodily harm) and sentenced to preventive detention (sikring) for a maximum period of five years in accordance with Article 39 para. 1 (e) of the Penal Code (see paragraph 53 below). In an expert psychiatric opinion obtained at that time, he was declared mentally ill (sinnssyk) and he spent the period from May 1967 to July 1972 in mental hospitals.
8. From 1973 to 1978 the applicant was detained for a period of approximately four years at either Telemark Central Hospital or Reitgjerdet Mental Hospital in accordance with the provisions of the Mental Health Act 1961 (lov om psykisk helsevern).
9. In 1978 the applicant was placed under "judicial observation" (judisiell observasjon) after having physically assaulted his father. The expert psychiatric opinion obtained at that time concluded that he was not mentally ill but had an underdeveloped and permanently impaired mental capacity (mangelfullt utviklede og varig svekkede sjelsevner) and that there was a clear risk of his committing further criminal offences.
10. By a judgment of 26 June 1978 the District Court (herredsrett) of Kragerø convicted the applicant of an offence under Article 228 of the Penal Code. It sentenced him to sixty days’ imprisonment and authorised the use of security measures under Article 39 para. 1 (a) to (f) of the Penal Code for a maximum period of five years.
11. On 3 July 1978 the prosecuting authority decided to detain the applicant in accordance with Article 39 para. 1 (e) in a security ward at Ila National Penal and Preventive Detention Institution ("Ila").
12. On 21 January 1980 the Ministry of Justice decided, pursuant to Article 39 para. 1 (a) to (c) to release the applicant on the condition, inter alia, that he reside at his parents’ home. Owing to a number of violent incidents, the applicant was however rearrested, and by a judgment of 15 June 1980 the District Court of Kragerø sentenced him to ninety days’ imprisonment, which sentence was deemed to have been served in detention on remand.
13. On 24 July 1980 the Ministry of Justice decided to place the applicant in preventive detention once more at Ila in accordance with Article 39 para. 1 (e). On 2 June 1981 he was released to his parents’ home under preventive supervision in accordance with Article 39 para. 1 (a) to (c).
14. A number of unfortunate episodes led the Ministry of Justice to decide under Article 39 para. 1 (e) to detain the applicant again. He returned to Ila on 17 July 1981.
15. On 5 February 1982 the Ministry of Justice decided to apply Article 39 para. 1 (f), of the Penal Code and on 16 February the applicant was sent to Oslo District Prison. On 4 November 1982 he was transferred to Ullersmo National Prison ("Ullersmo").
16. Whilst so detained, the applicant was convicted by the District Court of Asker and Bærum on 18 March 1983 and sentenced to six months’ imprisonment for physically assaulting prison staff at Ila and Ullersmo on three occasions. The expert psychiatric opinion obtained for the trial concluded, as before, that the applicant was not mentally ill but suffered from an underdeveloped and permanently impaired mental capacity.
17. With regard to the question of security measures, the court pointed out that the information available showed that detention in a prison or similar institution was inappropriate and had a destructive influence on the applicant. The court found that he clearly needed psychiatric care and concluded that everything should be done to give him adequate treatment. It accordingly authorised the prosecuting authority to impose security measures under Article 39 para. 1 except those provided in sub-paragraphs (e) and (f), namely detention in a security ward or in a prison.
Having served his sentence the applicant was released on 18 November 1983 and placed in a flat at Kragerø under the surveillance of the local police.
18. On 19 December 1983 the applicant was arrested and detained on remand, again charged with offences under Articles 227 and 228 of the Penal Code. A further expert psychiatric opinion was obtained. It reached the same conclusion as the two earlier ones.
19. By judgment of 20 September 1984 the District Court of Kragerø found the applicant guilty on most of the charges brought against him and sentenced him to one hundred and twenty days’ imprisonment. Furthermore, the court authorised the prosecuting authority to use any of the security measures mentioned in Article 39 para. 1 of the Penal Code for a maximum period of five years. It found that, having regard to the applicant’s almost total lack of self-control in certain situations and to his physical strength, it could not rule out the use by the competent authorities of preventive detention in a prison or in a security ward under Article 39 para. 1 (e) and (f) should this prove necessary. Apparently there was such a need, since the applicant remained at Ila.
20. The applicant appealed to the Supreme Court (Høyesterett) against the decision as regards preventive detention. In a decision (kjennelse) of 12 January 1985 Mr Justice Røstad stated, inter alia, on behalf of the unanimous court:
"I consider it beyond doubt that the scope of the security measures should be extended as set out in the judgment now appealed against. Like the District Court I find that the requirements for imposing security measures are fulfilled. [The applicant], who must be considered to have, as required by Article 39 [of the Penal Code], a deviant character, represents a serious danger regarding new offences, including threatening behaviour under Article 227. I may add that it cannot be considered disproportionate to impose security measures on such a clearly dangerous offender. In my view, the protection of society requires that the authorities should be able to impose such security measures as are considered necessary in order to prevent [the applicant] from committing further serious offences. In view of the summing-up of counsel for the defence, I would point out that I find no basis for arguing that the decision of a Norwegian court concerning the authorisation to use security measures in a case like the present one would violate [Article 3] of the ... Convention (art. 3). It is for the implementing authorities to ensure that the security measure takes a form which in practice not only protects the interests of society but also seeks to promote those of [the applicant], including his need for psychiatric treatment."
21. On 7 November 1985 the applicant was transferred from Ila to Ullersmo pursuant to a decision of the Ministry of Justice under Article 39 para. 1 (f) of the Penal Code.
22. On 29 October 1986 he was convicted by the District Court of Asker and Bærum of having attacked a prison officer and was given a suspended sentence of forty-five days’ imprisonment. On 12 January 1987 he was transferred from Ullersmo to Sunnås Rehabilitation Centre near Oslo in order to receive treatment from a psychologist for fourteen days. Certain examinations were carried out, but the applicant was sent back to Ullersmo after attacking one of the nurses.
23. On 24 February 1987 the applicant was sent to Reitgjerdet Mental Hospital, where it was established that he had become psychotic. As he thus met the requirements for compulsory placement, he was kept there until 4 December 1987, on which date the hospital concluded that he was no longer psychotic.
24. The applicant nevertheless stayed at the hospital on a voluntary basis, but after some weeks he became aggressive towards other patients and staff. As he refused to be placed in the ward for difficult patients, he was sent back to Ullersmo, still under the authorisation of the Ministry of Justice in accordance with Article 39 para. 1 (f) of the Penal Code.
25. With effect from 8 February 1988 the preventive measures were changed. Under Article 39 para. 1 (a) to (c) the Ministry of Justice decided that the applicant should be released from Ullersmo, on condition that he live in a house at Skien under the supervision of the Probation and After Care Service (kriminalomsorg i frihet).
26. On 19 April 1988 the applicant physically assaulted the social workers supervising him and the Ministry of Justice decided on the same day to replace preventive supervision under Article 39 para. 1 (a) to (c) by detention in a secure institution, at least for a short time, in accordance with Article 39 para. 1 (f). The applicant was transferred to Arendal District Prison.
27. On 19 May 1988 he was released from Arendal District Prison and moved to the house at Skien.
28. Following several violent incidents the Ministry of Justice decided on 21 July 1988, in accordance with a recommendation from the Probation and After Care Service, that preventive supervision at Skien should cease and that the applicant was to be transferred to Ila under Article 39 para. 1 (e).
29. On 21 October 1988 the Ministry of Justice decided that the applicant should be released and placed under preventive supervision pursuant to Article 39 para. 1 (a) to (c) of the Penal Code and he was brought back to the house at Skien. However, as on several occasions he violated the restrictions imposed on him the Ministry decided, in December 1988, to detain him at Ila again in accordance with Article 39 para. 1 (e).
30. On 11 January 1989 the applicant was convicted by the District Court of Kragerø of offences under Article 227 and Article 228 in conjunction with Article 230 of the Penal Code (threatening behaviour and physical assaults), committed against two social workers, a member of his family, a neighbour of his parents and members of that person’s family. He was sentenced to one hundred and twenty days’ imprisonment, which sentence was deemed to have been served in detention on remand. However, he continued to be detained at Ila under Article 39 para. 1 (e) as authorised by the District Court on 20 September 1984 and upheld by the Supreme Court on 12 January 1985 (see paragraphs 19 and 20 above).
31. The review available under Norwegian law of the lawfulness of the applicant’s repeated periods of detention in the Ila security ward and in prison (under Article 39 para. 1 (e) or (f) of the Penal Code) formed the subject matter of the E. v. Norway judgment of 29 August 1990 (Series A no. 181-A). In that case the Court concluded that there had been no violation of Article 5 para. 4 (art. 5-4) with regard to the scope of judicial review available but that there had been a violation of this provision (art.54) on account of a failure in certain review proceedings to take a decision "speedily".
32. While the applicant was detained again at Ila the authorities continued their efforts to solve the problems of his placement. On 22 June 1989 Dr Odd Gunnar Heitun, psychiatrist, submitted an expert opinion to the director of Ila concerning the use of security measures. Dr Heitun stated that the applicant’s state of mind and conduct had not significantly changed from year to year since 1965. He recommended an extensive programme whereby the applicant could live in his own home in Skien, under the surveillance of four social workers during day time and with regular counselling by a psychologist or psychiatrist, the whole project to be supervised by a project leader. It was estimated that to run the programme would cost a little less than two million Norwegian kroner per year. In September 1989 a meeting was arranged at Ila, attended by representatives from the Telemark Mental Hospital, the Telemark County Physician (fylkeslegen), the Telemark Probation and After Care Service, the applicant’s lawyer, social workers and the psychiatrist, Dr Heitun. Since certain matters remained to be clarified, no concrete proposal was adopted.
33. On 26 October 1989 the Institution Board (anstaltrådet) at Ila discussed the question of continuing the security measures in the light of the fact that the court authorisation to that effect would expire on 25 February 1990. Following this meeting the majority of the Board decided to recommend to the Vestfold and Telemark State prosecutor (Statsadvokaten i Vestfold og Telemark) to request the prolongation of the authorisation to use security measures under Article 39 para. 1 (a) to (f) of the Penal Code.
The recommendation was forwarded to the State prosecutor by letter of 11 January 1990 in which the acting director of Ila, inter alia, stated as follows:
"[The applicant] has now been placed, for approximately one year, in closed preventive detention [lukket sikring] at Ila. During this period he has on several occasions acted aggressively towards the prison officers. During previous stays in the institution he has attacked employees and has shown that his threats may be serious. Since 23 December 1988 [the applicant] has been placed in a cell of his own in section G since, for security reasons, it could not be justified to offer him a place in the open ward. Furthermore, [the applicant] has not been granted leave of absence since I fear that, due to [his] behaviour in prison, similar incidents might occur during such leave. I refer to the fact that he has been convicted several times for threatening behaviour and physical assault, most recently by a judgment of [11] January 1989 convicting him of similar offences committed while on leave in 1988. ... [The applicant] has disclosed a deviant character from a very young age. His behaviour and conduct do not appear to have changed essentially since 1965 when he suffered brain damage. In 1988 he was on three occasions transferred to Skien under preventive supervision but every time it was discontinued due to circumstances relating to [the applicant]. Therefore I consider it probable - or rather very likely - that he will commit new offences involving violence if he were to be released when the security measure authorisation expires. The possibility also exists that he would then commit far more serious offences than those of which he has previously been convicted. It has turned out to be impossible to make other arrangements acceptable to [the applicant]. As recently as 9 March and 23 May 1989 the Ministry of Justice refused [the applicant’s] requests to replace the detention with preventive supervision. The arrangement proposed by Dr Heitun, psychiatrist, appears to be more secure, but considerably more expensive than the previous ill-fated arrangements ... However, today there is no adequate alternative to continuing preventive detention at Ila. Accordingly, I would recommend renewed preventive detention upon expiry of the authorisation to use security measures on [25] February 1990 ..."
34. On the basis of the above recommendation the Vestfold and Telemark State Prosecutor "filed charges" (satte under tiltale) against the applicant by "indictment" (tiltalebeslutning) of 2 February 1990 in order to obtain the Kragerø District Court’s authorisation, pursuant to Article 39 para. 3, second sub-paragraph, of the Penal Code, to prolong by three years the authorisation to use security measures.
35. On 7 February 1990 the chief of police requested the District Court to detain the applicant on remand for a period of four weeks in accordance with Article 171 of the 1981 Code of Criminal Procedure (Straffeprosessloven), in order to obtain a medical opinion to be used during the forthcoming hearing concerning the question of further authorisation to use security measures. It was noted that the existing authorisation would expire on 25 February 1990.
36. On 12 February 1990 the District Court considered the question of detention on remand. The applicant maintained that detention on remand beyond 25 February 1990 would be illegal and would mean that he would be punished for the same offences twice. He alleged that the only reason why the authorities had requested his detention on remand was because they had failed to take the necessary procedural steps, although they had known for five years when the authorisation to use security measures would expire.
On this occasion, the District Court decided to obtain two expert statements and an opinion from the Medico-Legal Council (Den rettsmedisinske kommisjon), despite the fact that the applicant and the prosecution agreed that a statement by Dr Heitun would be sufficient.
37. In its decision of 12 February 1990 to detain the applicant on remand for a period of four weeks after 25 February 1990 the District Court stated:
"In accordance with Norwegian law the prosecuting authority shal consider and, where appropriate, determine the question of prolonging the period during which security measures can be used, even if the person in question has not committed new criminal offences, see Article 39 para. 3 of the Penal Code. ... In addition, the second paragraph in fine of Article 171 of the Code of Criminal Procedure authorises detention on remand in cases where such detention is needed pending a new decision on security measures, on the condition that continuing the use of security measures is the most likely outcome of the case and that one of the specific conditions for detention under the first paragraph of Article 171 is fulfilled. In this case it is the condition in the third sub-paragraph of the first paragraph which is relevant, namely the risk of new criminal offences punishable by more than six months’ imprisonment. ... The security measure issue cannot be examined before 25 February 1990. This is due to the fact that the necessary expert opinion will not be ready before that date. ... The Court finds reason to grant the prosecutor’s request, see [the above-mentioned provisions of the Code of Criminal Procedure]. The Court finds it very likely that [the applicant] - if released in two weeks - would commit criminal offences such as threatening behaviour (Article 227 of the Penal Code) and physical assault (Article 228). He has without doubt strong character deviations, little tolerance and he easily makes threats, and also attacks people. Today he is opposed to any arrangement for supervision. In its assessment the Court refers first of all to what has happened earlier. The Supreme Court’s decision of 1985 contains a thorough account of the previous period. Since 1985 he has been convicted twice for violations of Articles 227 and 228. Dr Heitun, psychiatrist, too must be understood as considering that [the applicant], due to his weak impulse control and impaired capacity to control himself, will find himself in situations where he reacts with verbal threats if he is released and that things will - despite his good intentions - go wrong. Furthermore, it is likely that the case to be brought before the district court will end with the granting of an authorisation to use security measures against [the applicant] - for one or more years and with one or more of the measures mentioned in Article 39 para. 1 (a) to (f) of the Penal Code. It suffices here to refer to the fact that this has been recommended by Ila prison authorities and that Dr Heitun has drawn up a new plan for security measures. In the present circumstances, the Court cannot see that the detention constitutes a disproportionate measure. [The applicant’s] case is sad and tragic, but the Court cannot have regard solely to his interests but must also take into account the risk of the applicant’s exposing others to fear and danger. As far as the Court can see from the case documents, it appears that the outcome will be the use of security measures to be implemented at Skien which should work better than the last programme and which would provide him with far better living conditions than he has experienced during the last fourteen months."
38. The applicant appealed against this decision to the Agder High Court (Agder Lagmannsrett). On 23 February 1990 the High Court upheld the decision of the lower court and added:
"There is no doubt that, under Norwegian law, it has up to now been assumed that it is permissible to prolong security measures beyond the maximum period even if the person concerned has not committed any crime during that period ... The High Court does not find that such an arrangement constitutes a violation of Article 4 of Protocol No. 7 to the Convention (P7-4) on double jeopardy. The statutory requirement that the Court must fix a maximum period for security measures is based, inter alia, on concern for the convicted person, namely to afford him after a certain period judicial review of the necessity of continued security measures ... The High Court has no particular reason to doubt that there is a very imminent risk that [the applicant] would commit new criminal offences were he to be released at the end of the period of security measures, without the prison or the prosecuting authorities having any control over him ... In order to prevent new acts of violence it is necessary that he be taken care of also after the expiry of the security measure. Accordingly, there is a need for detention on remand and a very high probability that a further authorisation to use security measures will be granted ... The High Court notes that detention on remand does not appear to be a disproportionate measure. The interests of protecting society override those of the [applicant] in being released. The fact that the request for detention on remand of [7] February 1990 ... was based on the ground that time was needed in order to obtain an additional expert opinion is, in the High Court’s view, of no relevance to the question of detention. The hearing at which the extension of the security measures is to be examined cannot be held until an opinion has been submitted by a further expert in psychiatry, in addition to Dr Heitun. Until the hearing can be held it is necessary to take care of [the applicant], in view of the danger of repetition of crime. The High Court has understanding for the feeling of hopelessness expressed by [the applicant’s] counsel about the fact that a programme for [the applicant] has still not been made. However, nt] has previously received, it cannot be maintained that his detention on remand would amount to a violation of Article 3 of the Convention (art. 3)."
39. The applicant appealed against this decision to the Supreme Court. On 16 March 1990 the Appeals Selection Committee of the Supreme Court (Høyesteretts kjæremålsutvalg) rejected the appeal. In its decision the court stated:
"In accordance with Article 39 para. 3, second sub-paragraph, [of the Penal Code] the Court must in cases concerning security measures fix a maximum period beyond which no measures can be taken without the Court’s permission. A decision to prolong an authorisation does not mean that the person in question is convicted or punished again for the offences which constituted the basis for the judgment allowing the use of security measures. The fact that these offences constitute the basis for using security measures has already been decided in this judgment. What is relevant for the question whether the use of security measures should be prolonged beyond the initial maximum period fixed is an assessment of the other circumstances which provide the reasons for using security measures, the person’s mental capacity and the risk of further criminal offences being committed. It follows from the judgment allowing the use of security measures, read in conjunction with Article 39 para. 3, second sub-paragraph, that the period of security measures may be prolonged, if there is reason to do so after such an evaluation. In view of the above, it does not appear that the High Court based its decision on an incorrect interpretation of Article 4 para. 1 of Protocol No. 7 to the Convention (P7-4-1) by assuming that a prolongation of the period of security measures in accordance with Article 39 para. 3, second sub-paragraph, of the Penal Code would not be contrary to the Convention provision (P7-4-1). The Court does not find either that the High Court’s decision is based on an incorrect interpretation of Articles 3 or 6 of the Convention (art. 3, art. 6)."
40. The applicant accordingly remained at Ila, in detention on remand, after the Supreme Court’s authorisation of 12 January 1985 expired on 25 February 1990.
41. On 20 March 1990 the District Court decided to extend the applicant’s detention until 23 April 1990, stating as follows:
"The basis for the continuing detention - both factual and lega - is the same as when the Court examined the detention issue on 12 February 1990; see also the decisions of the High Court and the Appeals Selection Committee of the Supreme Court. The Court does not consider the extension to be disproportionate either. With reference, among other things, to the recommendation of the Ila Institution Board and the psychiatrist Dr Heitun’s submissions during the Court session of 12 February 1990, it is likely that the case will result in a prolongation of the authorisation to use security measures against [the applicant]. The fact that the question of the continued use of security measures ought to have been decided before the expiry of the period authorised cannot constitute a ground for release ..."
42. The applicant appealed against this decision to the Agder High Court.
43. On 22 March 1990 the experts, Dr Heitun and Dr Johannesen, submitted their opinion to the District Court. It concluded:
"1. It is questionable whether [the applicant] can be regarded as a person with an underdeveloped mental capacity.
2. [The applicant] suffers from a permanently impaired mental capacity
3. [The applicant] is not in a state of insanity during the examination and there is no sign of reduced consciousness.
4. Prolonged authorisation to use security measures should not be granted and in case it is, it should exclude detention in a prison or in a security ward."
44. On 30 March 1990 the Agder High Court upheld the District Court’s decision of 20 March 1990. The High Court stated:
"The Court finds that there is a great risk that [the applicant] will commit criminal acts which are punishable by imprisonment for a term exceeding six months if he were to be released now and that, therefore, continued detention on remand is necessary until the question of prolonging the authorisation to use security measures can be examined in court. The Court disagrees with counsel for [the applicant] that it is unlikely that such prolongation will be granted. In the light of the risk of new criminal offences being committed, to release the applicant, before an examination of whether to prolong the authorisation to use security measures, would be so questionable that to detain him on remand until such time does not seem disproportionate. Nor does it appear to be contrary to Article 5 para. 3 (art. 5-3) of the European Convention on Human Rights. The Court also refers to the fact that the extension of the detention on remand is based on the need to reschedule the case as it will be necessary to replace the judge ..."
45. On 19 April 1990 the Appeals Selection Committee of the Supreme Court rejected the applicant’s appeal against the above decision of the High Court.
46. On 20 April 1990 the District Court extended the period of detention on remand by four weeks, until 21 May 1990, referring in substance to its decisions of 12 February and 20 March 1990.
47. On 25 April 1990 the Medico-Legal Council rejected the medical expert opinion of 22 March 1990 and requested the submission of a revised opinion in the case.
48. On 14 May 1990 the prosecutor-general (Riksadvokaten) withdrew the request for a prolongation of the authorisation to use security measures against the applicant. He was accordingly released on 15 May 1990.
49. During his detention from 25 February to 15 May 1990, the applicant was held in solitary confinement, as had been the case also from December 1988 until that period.
50. In July, August and September 1990 the applicant committed several offences. As a consequence he was arrested on 24 September 1990 and detained on remand until 15 November 1990. By judgment of 13 February 1991 he was convicted, inter alia, of threatening behaviour and physical assault under Articles 227 and 228 of the Penal Code and was sentenced to seven months’ imprisonment. Furthermore, the District Court authorised the use of security measures pursuant to Article 39 para. 1 (a) to (f) of the Penal Code for a period of three years. This judgment was upheld by the Supreme Court on 1 November 1991, excluding only the security measure set out in Article 39 para. 1 (c).
51. In the meantime the applicant had been arrested again, on 16 May 1991, and detained on remand. By judgment of 11 July 1991 he was sentenced to an additional ninety days’ imprisonment for further violations of, amongst other provisions, Articles 227 and 228 of the Penal Code. He was released on 13 July 1991. He served the remaining part of the sentence from 14 January until 16 April 1993. By judgment of 29 June 1994 the applicant was sentenced by the Kragerø District Court to ten months’ imprisonment having been found guilty on thirty-two counts of threatening behaviour and physical assault from December 1991 until April 1994. The applicant appealed against this judgment but the Appeals Selection Committee of the Supreme Court refused leave to appeal. He served the prison sentence.
On 21 April 1995 the District Court sentenced the applicant to seventy-five days’ imprisonment for physical assault on a prison officer. On 3 September 1996 it convicted him on one charge of threatening behaviour, two charges of physical assault and four charges of invasion of privacy and sentenced him to six months’ imprisonment. An appeal to the High Court was dismissed on 18 October 1996. On a further appeal, the Supreme Court, in a judgment of 21 February 1997, reduced the sentence to ninety days.
52. The Director of Public Prosecutions has, upon the advice of the Kragerø police and the public prosecutor of Vestfold and Telemark, decided not to request an extension of the order of security measures (see paragraph 50 above), which expired on 16 April 1996.
53. Article 39 of the Penal Code in its relevant parts reads as follows:
"1. If an otherwise punishable act is committed in a state of insanity or unconsciousness or if a punishable act is committed in a state of unconsciousness due to self-inflicted intoxication, or in a state of temporarily reduced consciousness, or by someone with an underdeveloped or permanently impaired mental capacity, and there is a danger that the offender, because of his condition, will repeat such an act, the court may decide that the prosecuting authority, as a security measure, shall
(a) assign or forbid him a particular place of residence,
(b) place him under surveillance by the police or a specially appointed probation officer and order him to report to the police or the probation officer at designated intervals,
(c) forbid him to consume alcoholic beverages,
(d) place him in secure private care,
(e) place him in a mental hospital, sanatorium, nursing home or security ward, where possible, in accordance with the general provisions promulgated by the King,
(f) keep him in preventive detention.
2. If such condition involves a danger of acts of the kind covered by Articles 148, 149, 152 (second paragraph), 153 (first, second and third paragraphs), 154, 155, 159, 160, 161, 192-98, 200, 206, 212, 217, 224, 225, 227, 230, 231, 233, 245 (first paragraph), 258, 266, 267, 268 or 292, the court shall decide to apply such security measures as are mentioned above.
3. These measures are terminated when they are no longer regarded as necessary, but may be resumed if there is reason to do so. The security measures listed under (a) to (d) may be employed concurrently. The court shall determine the maximum period for which security measures may be imposed without its further consent.
4. Unless the court has decided otherwise, the prosecution may choose between the above-mentioned security measures. The decision to terminate, resume or alter a security measure is made by the Ministry. Before a decision about security measures or their termination is made, the opinion of a medical specialist must normally be obtained. The same procedure should be followed at regular intervals during the period in which security measures are in force. ..."
54. Article 171 of the Code of Criminal Procedure reads as follows:
"Any person who with just cause is suspected of one or more acts punishable by law with imprisonment for a term exceeding six months may be arrested when:
(1) there is reason to fear that he will evade prosecution or the execution of a sentence or other precautions;
(2) there is an immediate risk that he will interfere with any evidence in the case, e.g. by removing clues or influencing witnesses or accomplices;
(3) it is deemed to be necessary in order to prevent him from again committing a criminal act punishable by imprisonment for a term exceeding six months; and
(4) he himself requests it for reasons that are found to be satisfactory. When proceedings relating to security measures have been instituted, or it is probable that such proceedings will be instituted, an arrest may be made regardless of whether a penalty may be imposed, as long as the conditions in paragraph 1 are otherwise fulfilled. The same applies when a judgment in favour of security measures has been pronounced or it is a question of extending the maximum period for using security measures."
55. Arrest and detention may be ordered under the second paragraph of Article 171 if a request has been made for an authorisation to use security measures under Article 39 of the Penal Code, or if a judgment has been given on the matter or if there is question of extending the maximum period of an Article 39 authorisation Detention on remand under the second paragraph of Article 171 may in such instances serve as a provisional measure to apply until the authorisation may be implemented (Andenæs, Norsk straffeprosess, vol. II, first edition 1985, p. 111, and second edition 1994, pp. 154-55).
56. The applicant submitted a copy of a decision of 28 April 1931 by the Appeals Selection Committee of the Supreme Court, quashing a decision by a city court to prolong an authorisation to use security measures under Article 39 of the Penal Code. Such prolongation should, after a main hearing (hovedforhandling), be decided by way of judgment by the city court which had initially given the authorisation, sitting, not with a single judge (forhørsrett), but with lay assessors (domsmenn).
57. On 26 January 1996 the Supreme Court delivered a judgment (Norsk Retstidende 1996, p. 93) which included the following statements about the interpretation of the second paragraph of Article 171:
"The connection between the criminal acts that provided the grounds for security measures, and the new - extended - authorisation of such supervision is quite crucial to the question whether the second paragraph, cf. the first paragraph, of Article 171 of the Code of Criminal Procedure requires that there must be a justified suspicion of a new criminal act punishable by imprisonment for a term exceeding six months. The Supreme Court cannot see that any such requirement can be read into the provision. Since the original criminal act can be the offence that provides grounds for continued security measures, it must also be possible for it to be the offence that forms the basic condition for a remand in custody pursuant to the said provision, which moreover will also in this instance require tha the general conditions for a remand in custody, e.g. a risk of repetition of an offence, are fulfilled (see Norsk Retstidende 1992, p. 136). This interpretation is supported by the legislative background of this provision. Before the 1981 Code of Criminal Procedure the provision concerning a remand in custody in connection with proceedings relating to security measures was contained in Article 39 para. 1 (b), item 4, of the Penal Code. There was nothing in that provision which indicated a new criminal act as a condition for a remand in custody in connection with proceedings for an extension of security measures. There is nothing in the legislative history in connection with the inclusion of this provision among the provisions of the Code of Criminal Procedure concerning remanding in custody which indicates that any change on this point was intended. Nor is it indicated by any considerations of policy. It is conceivable that the need for an extension of security measures will first become clear close to the expiry of the period of the security measures without there being any reason to criticise the prosecuting authority for not raising the question earlier, and without the need that has become apparent having any basis in the commission of a new criminal act punishable by imprisonment for a term exceeding six months. In such cases it may appear to be unconditionally necessary in order to prevent the commission of new serious criminal acts that the offender should be remanded in custody until a new legally enforceable authorisation for security measures subsists. The Supreme Court cannot see that this interpretation of the second paragraph of Article 171, cf. the first paragraph, of the Code of Criminal Procedure - to the effect that a new criminal act punishable by imprisonment for more than six months is not required - is contrary to the provision in the European Convention on Human Rights. The provision in the Convention which might conceivably be applicable must be Article 5 para. 1 (c) (art. 5-1-c). The European Court of Human Rights has interpreted this provision (art. 5-1-c) to the effect that it ‘permits deprivation of liberty only in connection with criminal proceedings’ (see, inter alia, the Court’s judgment of 22 February 1989 in the Ciulla case). The rule must be that a person who is convicted of a criminal act cannot, after having served his sentence, be subjected to a new remand in custody on the basis of the matters that have been adjudicated because there is reason to fear the commission of new criminal acts. In cases of security measures, however, the situation is - as the Court has stated - that an authorisation of limited duration is given to apply specific security measures, which can be extended if the conditions for such extension subsist. The extension will be a part of the reaction system - see Article 5 para. 1 (a) of the Convention (art. 5-1-a). When a decision is made to remand an offender in custody as a step in proceedings for the extension of security measures, because he is dangerous and it is necessary to protect vulnerable persons - in this case children against sexual assaults - the Supreme Court can take no other view than that the remand in custody, in the same way as when a remand in custody is otherwise used pending a sentence becoming legally enforceable, has the necessary connection with the criminal acts committed and the lawful prosecution thereof. The Supreme Court also finds it necessary to consider the restriction which the European Court of Human Rights has read into Article 5 para. 1 (c) of the Convention (art. 5-1-c) as regards the condition ‘necessary to prevent him from committing a criminal act’, i.e. that a remand in custody must be to ‘prevent a concrete and specific offence’ (see, inter alia, the Court’s judgment of 6 November 1980 in the Guzzardi case). This need for concretisation is significant. A more general risk of punishable offences would not be sufficient ... In the opinion of the Supreme Court, the risk of a criminal act [in this case] was concrete and specific for the purposes of Article 5 para. 1 (c) (art. 5-1-c) ..."
58. Article 174 of the Code of Criminal Procedure requires that the detention should not be a disproportionate measure.
59. According to chapter 2, section 3, of the Mental Health Act, a person who, because of his or her mental state, does not seek the medical supervision and psychiatric health care which he or she needs and whose nearest relatives fail to ensure that he or she does so, may be subjected to compulsory medical examination and may, if necessary, be placed without his or her own consent, for up to three weeks, for treatment in a hospital or other appropriate place.
However, under section 5, a person suffering from serious mental illness may be admitted to hospital without his or her consent if his or her nearest relatives or a public authority so desire, and if the senior physician at the hospital considers, on the basis of the patient’s state of health, that such admission is necessary in order to prevent him from suffering harm or that the prospect for recovery or substantial improvement is jeopardised or that the patient presents a serious danger to himself or others.
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-1
5-3


ITEMID: 001-22693
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: OSTOJIC v. CROATIA
IMPORTANCE: 1
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Mr Dragan Ostojić, is a Croatian citizen of Serbian origin, who was born in 1936 and lives in Barajevo. Yugoslavia. He is represented before the Court by Mr Nenad Stanković, a lawyer practicing in Borče, Yugoslavia.
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant owned a house where he lived with his family and adjacent stable and wooden house in the village Ostojići, Croatia. On 5 August 1995 the applicant, due to a military action by the Croatian Army, left Croatia and went to live in Yugoslavia.
The applicant alleges that after his departure his property in Croatia was devastated sometime between 5 August 1995 and 30 June 1996 by the members of the Croatian Army.
The applicant alleges further that the Croatian authorities impeded his return to Croatia. He was able to obtain Croatian identity documents only in 1999 and to enter Croatia only in March 2000.
In the meantime Parliament introduced two changes to the law governing compensation for damage caused by terrorist acts and the war-related damage.
Firstly, on 17 January 1996 the Croatian parliament introduced a change of the Civil Obligations Act which provided that all proceedings concerning actions for damages resulting from terrorist acts were to be stayed pending the enactment of new legislation on the subject and that before the enactment of such new legislation damages for terrorist acts may not be sought. So far the Croatian authorities have not enacted any new legislation regulating the matter.
Secondly, on 6 November 1999 Parliament introduced a change of the Civil Obligations Act which provided that all proceedings concerning actions for damages resulting from acts of members of the Croatian army or police when acting in their official capacity during the war in Croatia were to be stayed.
The relevant part of the Civil Obligations Act (Zakon o obveznim odnosima) reads as follows:
“Responsibility for damages caused by death, bodily injury or by abstraction or destruction of another person’s property, when it results from violent acts or terror or from public demonstrations or manifestations, lies with the authority whose officials were, according to the laws in effect, under a duty to prevent such damages.”
The relevant parts of the Act on Changes of the Civil Obligations Act read (Zakon o izmjenama i dopunama Zakona o obveznim odnosima - Official Gazette no. 7/1996) as follows:
“Section 180 of the Civil Obligations Act (the Official Gazette nos. 53/91, 73/91 and 3/94) is to be repealed.”
“Proceedings for damages instituted pursuant to Section 180 of the Civil Obligations Act are to be stayed.
Proceedings referred to in § 1 of this section will be continued after enactment of a special legislation that will regulate responsibility for damages resulting from the terrorist acts.”
Section 184 (a) of the Act on Changes of the Civil Obligations Act (Zakon o dopunama Zakonu o obveznim odnosima, Official Gazette no. 112/1999) provides that all proceedings instituted against the Republic of Croatia for damages caused by members of the Croatian army or police when acting in their official capacity during the Homeland War in Croatia from 7 August 1990 to 30 June 1996 are to be stayed.


ITEMID: 001-119049
LANGUAGEISOCODE: ENG
RESPONDENT: NOR
BRANCH: CHAMBER
DATE: 2013
DOCNAME: CASE OF KRISTIANSEN AND TYVIK AS v. NORWAY
IMPORTANCE: 3
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);Non-pecuniary damage - award
JUDGES: Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turković
TEXT: 4. On 30 November 1990 the first applicant submitted a patent application for a particular method of propulsion of aircrafts and sea vessels to the Norwegian Industrial Property Office (Patentstyrets første avdeling – hereinafter referred to as “NIPO”). Ranging under the Ministry of Trade and Industry, NIPO is a government authority, responsible for processing and deciding on applications for patent protection in Norway. The application was allotted no. 19905214.
5. In a letter of 21 March 1991, NIPO presented a preliminary opinion stating that the application in its present form was not patentable because it did not reveal a concrete solution to achieve the desired effect. It also questioned whether the invention had any effect at all. Therefore, under former section 28 (currently section 32) of the Regulation (forskrift) to the Patents Act 1967 (patentloven), NIPO required the first applicant to perform a test (“praktiske forsøk”) at an independent research institute and to submit the necessary test documentation. The first applicant replied on 30 September 1991 that he disputed the need for a test and referred to the high costs for such tests. However, he informed NIPO that prototypes were under construction and could be tested in the presence of representatives from NIPO.
6. In the period from 6 May 1992 to 10 May 1994, there was correspondence between the first applicant and NIPO as to the existence of any need to protect the confidentiality of the application. In February 1993 NIPO asked the Military Supreme Command whether the application should be kept secret on national security grounds, which the latter answered in the negative in March 1993. The first applicant was informed in June 1993.
7. On 9 May 1994 the first applicant provided NIPO with further information on the subject-matter of the application. On 24 February 1995, NIPO reiterated its request of 21 March 1991 that the first applicant provide evidence from tests showing the technical effect and concrete features of the invention. In his reply of 23 May 1995 the first applicant submitted theoretical views on the subject-matter of the application with reference to a research report of 1965 which, according to him, described tests and results that proved the technical effect of his invention. The required tests were therefore superfluous, in his view.
8. The first applicant on 27 November 1996 complained about the delays in the processing of his application. The NIPO’s Director General on 9 December 1996 apologised for the delay and said the matter would be given priority.
9. On 16 December 1996 NIPO maintained its earlier requirement of independent tests, to which a series of exchanges ensued between the applicant and NIPO on the need for tests, including a protest by the applicant questioning NIPO’s technical competence and the submission by him of statements by two academics, dated 14 March and 18 December 1997, respectively.
10. Whilst apologising for the delay, NIPO maintained its position on the need for testing in a communication to the first applicant of 5 May 1999 and gave him until 5 November 1999 to comply.
11. By a registered letter of 26 October 1999, received on 11 November 1999, the first applicant again characterised NIPO’s processing as late and technically incompetent without making any new arguments concerning the requirements for granting a patent.
12. On the ground of the first applicant’s failure to comply with the time-limit of 5 November 1999, NIPO decided to discontinue (henlegge) its examination of his application under section 15(2) of the Patents Act (according to which, in the event of an omission by a patent seeker to provide a statement or to take measures to rectify a notified deficiency, the application shall be shelved). Upon reconsideration of the matter, NIPO informed the first applicant on 18 February 2000 that, although the application had been received on time, it maintained its decision to shelve the application because he had not met the substantive requirements indicated to him on 5 May 1999.
13. The first applicant then lodged a petition with the Parliamentary Ombudsman for Civil Matters on 8 March 2001.
14. Following an inquiry by the Parliamentary Ombudsman for Civil Matters, NIPO informed the first applicant on 30 August 2001 that it had annulled its decision to discontinue the matter and gave him until 28 February 2002 to respond to its letter of 5 May 1999. He replied on 24 September 2001 but without presenting any new arguments or material.
15. On 2 October 2001 NIPO refused the application on the ground that the applicant had not made it probable that the subject-matter of the application had the alleged technical effect.
16. On 23 January 2002 the Parliamentary Ombudsman informed NIPO that he found no grounds for continuing the investigation of the petition.
17. On 27 November 2001 the first applicant appealed to the Board of Appeals (Patentstyrets annen avdeling) against NIPO’s decision of 2 October 2001.
18. Following a period of circulation of the case files among the members of the Board of Appeals, the first meeting on the case was held on 13 September 2004. The Board of Appeals took a different view than NIPO and indicated a new formulation of the patent claims which might lead to a patent, but only for sea vessels. The applicant was informed correspondingly in a letter of 29 September 2004.
19. During the period from 12 November 2004 to 13 January 2005, there was correspondence between the Board of Appeals and the first applicant in order to arrange a meeting, which was held on 2 February 2005. The subject-matter of the appeal was discussed together with the further process.
20. On 14 February 2005, NIPO was informed that 50% of the ownership to the application had been transferred to the second applicant Tyvik AS. Thereafter, mostly both applicants, occasionally only the first applicant, acted as claimants in the relevant proceedings (to simplify “applicants” is used in the following).
21. In the period from 2 May 2005 to 17 October 2005, the Board of Appeals and the applicants exchanged various communications regarding the patentability of the original patent claims.
By a decision of 14 November 2005, the Board of Appeals concluded that the invention in application no. 19905214 had a technical effect, but the Board did not consider whether other patent requirements had been fulfilled. The applicants had received information on how to change the claims into a patentable invention but had been unwilling to do so. Consequently, the Board did not find any grounds to continue processing of the application. Accordingly, NIPO’s decision was set aside and the application was referred back to NIPO for further consideration.
22. Following the return of the application to NIPO, it concluded in its letter of 29 November 2005 that the subject-matter of NO 19905214 could not be considered novel.
23. The applicants, represented by Mr. H. Berge, filed a new complaint to the Parliamentary Ombudsman on 13 March 2006 concerning the proceedings before NIPO. In particular they claimed that the executive officer of NIPO had been prejudiced as he was responsible for considerable parts of the previous processing and the refusal of the application prior to the appeal to the Board of Appeals. The Parliamentary Ombudsman replied on 22 March 2006 and 29 June 2006 that he could not decide on complaints until the processing of the application had been completed, but assumed that the case would now be examined with due diligence (“tilbørlig hurtighet”).
24. Exchanges of correspondence between NIPO and the applicants continued between 31 May 2006 and 11 June 2006. NIPO provided guidance and suggested that specific changes be made to the patent claims in order to render the subject-matter of the application patentable. The applicants disagreed.
25. On 20 June 2007, the application was formally refused due to lack of novelty (see paragraph 35 below).
26. On 20 August 2007 the applicants appealed to the Board of Appeals. On 29 November 2007, they were informed that the Board, after having examined the case (on 12 November 2007) had found it clear that the conditions for granting a patent had not been fulfilled in so far as concerned aircrafts. However, the application might succeed in respect of a more limited field of sea vessels. It was proposed that the patent requirements be formulated in a similar manner as proposed in the Board of Appeals’ letter of 29 September 2004 (see paragraph 18 above).
27. The communication of 29 November 2007 further warned the applicants that if the patent requirements were not defined in accordance with the indications given, the Office’s rejection might be confirmed. In the alternative, the part of the application that related to air transport might be disjoined from that which related to sea transport, in which case it might be expected that the former part would be rejected. As an alternative to delimiting against the requirements to aircrafts, dividing the application into two parts, one concerning aircrafts, another concerning sea vessels, could be considered, in accordance with section 11 of the Patents Act. In that case, a rejection of the separate part relating to air crafts ought to be expected.
28. The applicants were given until 29 January 2008 to comment and were warned that the case might be determined on the basis of the case-file as it stood as at that date.
29. In a letter to the Board of Appeals of 28 January 2008, the applicants submitted their observations to the communication of 29 November 2007 and altered the definition of patent requirements.
30. On 22 September 2008 the Board of Appeals confirmed NIPO’s refusal of the patent requested (see paragraph 25 above), albeit on a different reasoning. Whilst NIPO had been sceptical about whether the patent requested could serve according to its purpose, the Board of Appeals had no doubt that the results could be achieved with the invention that could be exploited industrially and that the application could not be rejected on this ground. Both NIPO and the Board of Appeals found that the application did not involve any novelty in respect of aviation, though the reasoning differed. Unlike NIPO, the Board of Appeals found that the application could have succeeded in a limited area of sea transport. The applicants had been advised that in order to succeed, the patent requirements would have to be defined so as to exclude aviation but had not been willing to do so. The application as presented did therefore not fulfil the conditions for grant of patent.
31. The applicants have apparently not challenged the Board of Appeals’ decision of 22 September 2008 before the Norwegian courts.
32. According to the applicants, the patent applications they had filed in 2003, made in light of the patent application of 30 November 1990 (no. 19905214), had been granted in the United States of America, Russia, China and Singapore and “through the EPO [European Patent Office] as well”.
33. The Government submitted that according to Espacenet (a database provided by EPO), the applicants had not claimed priority with respect to no. 19905214 in any of the above mentioned countries or in EPO. The granted EPO patent had claimed priority in relation to another and separate application by the applicants, namely no. 20015844, which had been based on knowledge from no. 19905214. When comparing the EPO patent claims with no. 19905214, one would observe that the former had been based on additional features that had made the invention patentable.
34. Section 1 (1) of the Patent Act 1967 (patentloven), provides:
“Within any technical field, any person who has made an invention which is susceptible of industrial application, or his successor in title, shall, in accordance with this Act, have the right on application to be granted a patent for the invention and thereby obtain the exclusive right to exploit the invention commercially or operationally.”
The expression “industrial application” requires that the innovation has “technical effect”.
35. Pursuant to section 2, patents shall be granted only for inventions which are new in relation to what was known before the filing date of the patent application, and which also differ essentially therefrom.
36. Section 15 provides:
“If the applicant has not complied with the prescribed requirements with respect to the application, or if NIPO finds other obstacles to the acceptance of the application, the applicant shall be notified to that effect and be invited to submit observations or to correct the application within a specified time limit. However, NIPO may make such amendments in the abstract as found necessary without consulting the applicant.
If the applicant fails, within the time limit, to submit observations or to take steps to correct a defect which has been pointed out, the application shall be shelved. Information to that effect shall be given in the notification from NIPO referred to in the first paragraph.”
37. Section 27 (1) to (3) of the Patents Act reads:
“An appeal must be received by NIPO within two months from the date on which notification of the decision was sent to the party concerned. ... If these provisions are not complied with, the appeal shall not be submitted for consideration.
Even if the opponent withdraws his appeal, it may be examined if special circumstances make it desirable.
A decision by the Board of Appeals refusing a patent application, revoking a patent, or maintaining a decision by NIPO to revoke a patent may not be brought before the courts of law later than two months from the date on which the applicant or patent holder was notified of the decision. Information with respect to the time limit for instituting proceedings shall be given in the notification.”
38. According to section 40 of the Patents Act, a granted patent may be maintained for up to twenty years from the date of filing of the patent application. It is undisputed in this case that, had a patent been granted in Norway, this would have meant that the patent protection would have expired on 30 November 2010.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-23578
LANGUAGEISOCODE: ENG
RESPONDENT: CHE
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: SCHÄLCHLI v. SWITZERLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant, Roger Schälchli, is a Swiss national born in 1927. When filing the application he was detained in Saxerriet prison in Switzerland. He is represented by Mr P. Albrecht, a lawyer practising in Zurich.
The facts of the case, as submitted by the parties, may be summarised as follows.
As from 1972 onwards, the applicant and his wife ran a children’s home in the Canton of St. Gallen. In 1991 three girls were accepted as boarders, i.e. A, born in 1990, and the two sisters B and C, born in 1990 and 1989, respectively. In May 1994, the three girls left the home and were placed in three different foster families.
On 20 July 1994 A’s foster parents, Mr and Mrs E., reported to the police that they suspected the applicant of having sexually abused A while she was in the children’s home. On 29 July 1994 a policewoman questioned Mrs E. and, in her presence, A, whereupon a criminal report was filed against the applicant, accusing him of having committed sexual acts with A from 19911994. On 29 August 1994 A underwent a medical examination.
The suspicion then arose that B and C had been sexually abused. On 2 September 1994 a policewoman interviewed B and C. On 5 September 1994 a criminal report was filed accusing the applicant of also having sexually abused B and C from 1991-1994. The report noted that the statements of B and C coincided substantially with those of A.
The applicant was remanded in custody on 12 September 1994.
Based on the medical examination of the victims on 29 August 1994, the Institute of Forensic Medicine of the Canton of St. Gallen, prepared a report on 12 October 1994. On 24 October 1995, the Psychiatric Service for Juveniles (Kinder- und Jugendpsychiatrischer Dienst) of Eastern Switzerland prepared an expert opinion as to the credibility of the statements made by A, B and C during the various interviews. It concluded that A’s previous statements could be confirmed. The statements of B and C as recorded in the minutes most probably reflected what they themselves had experienced. There was no indication of sexual abuse by any other person, and it appeared most unlikely that the children had made up the events themselves.
On 31 January 1996 Mrs H. was appointed by the Guardianship Office (Vormundschaftsbehörde) to supervise the fostership of A.
On 31 October, Mrs H questioned A alone. A made various statements, pointing out the areas on her body where the applicant had hurt her, and explaining how this had happened. Mrs H. prepared a report on this conversation. She informed the investigating judge first by telephone, later she was questioned by him on 14 November, whereby she was reminded of her duty to tell the truth.
On 29 October 1996 the investigating judge interviewed A in the presence of the foster mother. A’s statements, referring to various sexual acts by the applicant, coincided with those previously made by her. The case was referred to trial on 10 July 1997.
On 18 May 1998 the Cantonal Court (Kantonsgericht) of the Canton of St. Gallen convicted the applicant of having committed sexual acts with children and sentenced him to six years’ imprisonment. In its judgment the Court analysed in detail the various statements made by A, B and C during the investigations which had not been called into question by the forensic expert opinion of 12 October 1994. They had been regarded as credible by the Psychiatric Service for Juveniles, and the court considered them to be correct. The court found it established that the applicant had abused the children and did not regard it as necessary to comply with the applicant’s request to hear further witnesses, in particular Mrs E., the foster mother.
The applicant filed a plea of nullity (Nichtigkeitsbeschwerde) with the Court of Cassation (Kassationsgericht) of the Canton of St. Gallen.
Meanwhile, the applicant ordered the preparation of a private expert opinion. The expert opinion, prepared by a psychiatrist and submitted on 13 July 1998, noted deficiencies in the report of the Psychiatric Service for Juveniles of 24 October 1995.
The Court of Cassation dismissed the applicant’s plea of nullity on 17 December 1998. In its judgment it rejected various elements of evidence as being belated, including the applicant’s private expert opinion of 13 July 1998.
The applicant filed with the Federal Court (Bundesgericht) a plea of nullity and a public law appeal (staatsrechtliche Beschwerde). In the former he complained of the sentence and in the latter of the unfairness of the proceedings. Both applications were dismissed by the Federal Court on 6 May 1999. The judgments were served on the applicant’s lawyer on 19 May 1999.
In its judgment concerning the applicant’s public law appeal, the Federal Court considered the issue of questioning victims in the absence of the accused; the court found that “while this had not been raised, it has however been addressed (nicht gerügt, aber angesprochen)”. In the court’s view, in such a case the accused’s defence rights had to be ensured in other ways. In respect of the applicant’s complaint that the questions had been put in a suggestive manner, the Federal Court noted that this particular matter had been the decisive issue before the lower courts and had received ample consideration. Noting the extensive verbatim minutes, the Federal Court considered that the children had explained themselves in many different ways – verbally and non-verbally. These indications militated against the conclusion that the children had been manipulated or that the questioning had followed any insinuating structure. The Federal Court concluded that the Cantonal Court could on tenable grounds and without arbitrariness conclude that the children’s statements had been credible and correct.


ITEMID: 001-77325
LANGUAGEISOCODE: ENG
RESPONDENT: HUN;SVK
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF NEBUSOVA v. HUNGARY AND SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Remainder inadmissible;Non-pecuniary damage - financial award
TEXT: 5. The applicant was born in 1943 and lives in Bratislava. She has a son whose father, a Hungarian national, lives in Miskolc, Hungary.
6. On 9 September 1991 the Bratislava 5th District Court (Slovakia) ordered the father to pay child maintenance.
7. On 7 June 1994 the applicant, on behalf of her son, filed a petition with the District Court for the judicial enforcement of the maintenance payments. She claimed that, since August 1993, the father had not been paying the maintenance regularly or in full.
8. On 31 July 1995 the District Court increased the amount of child maintenance payable by the father retroactively, as from 1 January 1994. The judgment became final and binding on 6 December 1995.
9. On 4 March 1996 the District Court forwarded the applicant’s petition for enforcement to the Miskolc District Court (Hungary) under a 1989 treaty between former Czechoslovakia and Hungary. On 29 April 1996 enforcement proceedings were instituted before the Miskolc District Court.
10. On 10 October 1996 the Miskolc District Court, having heard the debtor and obtained documents from his employer and the bank handling the transfer of child maintenance payments in foreign currency, informed the Bratislava 5th District Court directly of its finding that the debtor had been making regular payments. Since no reply or acknowledgement was received from the Slovak authorities, the Miskolc District Court attempted service through the Ministry of Justice. Service was finally acknowledged on 21 January 1998.
11. On 14 August 2000 the applicant had answered the debtor’s objection lodged in the meantime. She requested the Miskolc District Court to re-examine the amount and regularity of the payments. On 17 November 2000 the court received information from the bank that some payments had been withheld on account of the applicant’s failure to submit a certificate of school attendance, which was required once her son had reached the age of 16.
12. In May or June 2001 the Miskolc District Court observed that the applicant’s petition for enforcement concerned amounts due for the period from 1992 to 1996. It informed her that a claim for maintenance concerning any periods preceding the claim by more than six months could only be enforced if she proved that the father had acted in bad faith or that she had had serious and justified reasons for not having petitioned for enforcement earlier. The court invited the applicant to substantiate within 15 days of service of the decision whether either of these conditions was met. The decision was served on the applicant through the Bratislava Regional Court on 3 September 2001. On 19 September 2001 she replied via the Bratislava Regional Court (Slovakia).
13. On 26 October 2001 the Miskolc District Court rejected the applicant’s petition for enforcement finding that, despite its above instruction, the applicant had failed to provide the relevant information. The decision was served through the Bratislava Regional Court. On the applicant’s appeal in March 2002, the Borsod-Abaúj-Zemplén County Regional Court (Hungary) quashed the first-instance order and remitted the case to the Miskolc District Court.
14. In the resumed proceedings, on 5 March 2003 the Miskolc District Court declared the decisions of the Bratislava 5th District Court executable. This decision became final on 8 April 2003.
15. On 4 July 2003 execution proceedings were instituted against the father. It appears that on 15 August and 12 December 2003, respectively, the judicial executor attempted to attach the father’s salary and tangible assets.
16. On 9 January 2004 the father filed with the Miskolc District Court an objection to the execution. After the applicant’s claims had been recalculated (given that the debt was determined in Slovak currency, whereas the applicant had claimed payments in American dollars, and the amounts were deducted from the debtor’s salary in Hungarian currency), the execution order was supplemented on 6 January 2005 and served on 1 June 2005.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-113014
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: OULD DAH v. FRANCE
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Ely Ould Dah, is a Mauritanian national, who was born in 1962. He was represented before the Court by Mrs C. Waquet, a member of the Conseil d’Etat and Court of Cassation Bar.
The facts of the case, as submitted by the parties, may be summarised as follows.
Between November 1990 and March 1991 clashes occurred between Mauritanians of Arab-Berber origin and others belonging to black African ethnic groups. Some servicemen from these ethnic groups, accused of mounting a coup d’état, were taken prisoner. Some of them were subjected to acts of torture or barbarity by their guards, among whom was the applicant, an intelligence officer at the Nouakchott army headquarters in Mauritania, holding the rank of lieutenant.
On 14 June 1993 an amnesty law was passed in favour of members of the armed forces and the security forces who had committed offences between 1 January 1989 and 18 April 1992 in connection with the events giving rise to armed conflict and acts of violence. By virtue of that law, no proceedings were brought against the applicant for offences committed against prisoners.
In August 1998 the applicant, who was by then captain of the Mauritanian army, arrived in France for a training course at the Montpellier Infantry Academy.
On 8 June 1999 the International Federation for Human Rights (Féderation Internationale des Ligues des Droits de l’Homme) and the Human Rights League (Ligue des Droits de l’Homme) lodged a criminal complaint against the applicant, together with an application to join the proceedings as civil parties, for acts of torture allegedly committed by him in Mauritania in 1990 and 1991. These criminal proceedings were based on the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (hereinafter “the United Nations Convention against Torture”), adopted by the General Assembly of the United Nations on 10 December 1984, which was ratified by France and came into force on 26 June 1987.
The applicant was arrested on 1 July 1999.
On 2 July 1999 an investigation was begun and the applicant was charged with committing acts of torture or barbarity. He was placed in pre-trial detention until 28 September 1999, before being released on bail. The applicant absconded on an unknown date. A warrant was issued for his arrest in April 2000.
On 25 May 2001 the investigating judge committed the applicant for trial on charges of committing, and aiding and abetting acts of torture and barbarity. The judge based the indictment on the witness evidence of nine former servicemen and the widow of a tenth serviceman. Two of the witnesses, who had taken refuge in France, had been confronted with the applicant during the investigation, while the others had provided written statements. The applicant appealed against the committal order.
In a judgment of 8 November 2001, the Investigation Division of the Montpellier Court of Appeal declared the applicant’s appeal inadmissible on the ground that it had been lodged too late. The applicant appealed on points of law.
On 6 March 2002 the Court of Cassation quashed the Investigation Division’s judgment and remitted the case to the Nîmes Court of Appeal.
In a judgment of 8 July 2002, the Investigation Division of the Nîmes Court of Appeal upheld the order of the investigating judge and committed the applicant for trial before the Gard Assize Court. It found that the condition provided for in Article 1 of the United Nations Convention against Torture was satisfied, as the acts in question had been carried out in the context of an “ethnic purge” and a massive campaign of repression conducted by the Mauritanian government in power at the time, and that the applicant had acknowledged having acted in an official capacity, within the meaning of the Convention provisions, as an intelligence officer and member of the investigating committee. The Investigation Division also considered that the provisions of Articles 689, 689-1 and 689-2 of the Code of Criminal Procedure and Article 7 § 2 of the United Nations Convention against Torture vested jurisdiction in the French courts to try the case, apply French law and override an amnesty law passed by a foreign State where application of that law would result in a breach of France’s international obligations and render the principle of universal jurisdiction totally ineffective. As the principle of lawfulness did not preclude an offence from being defined in a treaty or an international agreement, the latter prevailing over the law, it held that while “acts of torture” had, since the new Criminal Code, been classified as a “separate crime” defined and punishable under Articles 222-1 et seq. of the Criminal Code, such acts had previously constituted an aggravating circumstance in respect of certain offences, and particularly the crime of aggravated assault provided for in Articles 303 and 309 of the Criminal Code, now repealed, which was a crime punishable by “five to ten years’ imprisonment”. The Investigation Division concluded that the offence with which the applicant was charged – which constituted a crime – was not time-barred and that the only limit in terms of punishment was that only those penalties applicable at the relevant time could be imposed, unless a more lenient criminal law had since been passed.
In a judgment of 23 October 2002, the Court of Cassation dismissed an appeal on points of law lodged by the applicant, finding that the Investigation Division had justified its decision in respect of all the points raised by the applicant.
As the applicant had absconded, a summons to appear before the Assize Court was served at the public prosecutor’s office on 13 May 2005.
On 30 June 2005 the trial was held before the Gard Assize Court. Counsel for the accused was heard in the latter’s absence.
On 1 July 2005 the Assize Court delivered two judgments. In the first one it sentenced the applicant to ten years’ imprisonment for intentionally subjecting certain persons to acts of torture and barbarity and, in addition, causing such acts to be committed against other detainees by abuse of his official position or by giving instructions to servicemen to commit such acts. The Assize Court referred, inter alia, to Articles 303 and 309 of the former Criminal Code, Article 222-1 of the Criminal Code, and to the United Nations Convention against Torture. In the second judgment it awarded damages to the various civil parties.
“Any criminals, irrespective of the type of offence they have committed, who use torture or commit acts of barbarity in the execution of their crime shall be punished as being guilty of murder.
Anyone who, in perpetrating their offence, uses torture or commits acts of barbarity shall be punished by five to ten years’ imprisonment.”
“Anyone who has intentionally wounded another or committed violence or assault resulting in sickness or total unfitness for work for more than eight days shall be liable to between two months’ and two years’ imprisonment and to a fine of between 500 and 20,000 francs or to one of those penalties alone. ...”
“Anyone who subjects another to torture or to acts of barbarity shall be liable to fifteen years’ imprisonment.
The first two paragraphs of Article 132-23 relating to the minimum term of imprisonment shall apply to the offence provided for in the present Article.”
The circular of 14 May 1993, which contains commentaries on the new Criminal Code and the provisions of the Law of 16 December 1992, specifies as follows:
“[t]he expression torture and acts of barbarity shall retain the meaning currently ascribed to it in the case-law where such acts are referred to as an aggravating circumstance.”
Both the crime instituted by the law and the former aggravating circumstance of torture or acts of barbarity presuppose the establishment of an actus reus, consisting of the commission of one or more acts of exceptional seriousness which go beyond mere violence and cause the victim severe pain or suffering, and mens rea, consisting of the intention to deny a person their human dignity (Indictment Division of the Lyons Court of Appeal, judgment of 19 January 1996, commentary in Recueil Dalloz, 1996, p. 258, and cited in Article 222-1 of Code pénal (“Criminal Code”), ed. Litec).
According to the case-law of the Court of Cassation, the new provisions relating to torture and acts of barbarity ensure continuity of the definition of the offence as expressed in the former Criminal Code (Bull. crim. 11 May 2005, Bull. no. 146, appeal no. 05-81331: a court which commits an accused for trial before the Assize Court on the ground that Article 222-3 § 2 of the new Criminal Code – making it a crime to commit torture or acts of barbarity concurrently with a sexual offence – ensures continuity of the offence provided for in former Article 333-1, introduced by the Law of 23 December 1980 and making it an offence to commit indecent assault accompanied by torture or acts of barbarity, makes a proper application of successive criminal laws).
The circular of 14 May 1993 also specifies that the provisions of the new Criminal Code are of much broader application than those of the United Nations Convention against Torture, the latter applying only to acts perpetrated by public officials for specific motives. It also indicates that the new definition remedies substantial loopholes in the punishment of the crime by allowing not only the degree of injury suffered by the victim to be taken into account, but also the seriousness of the violent act in question, irrespective of its consequences. In particular, it remedies the disadvantages arising from the inability to punish attempted wilful assault under the former system.
“An accused who fails to attend the opening of his or her trial without a valid excuse shall be tried in absentia in accordance with the provisions of the present chapter. The same shall apply where the accused is recorded absent during the proceedings and it is not possible to stay the proceedings pending his or her return. ...”
“An accused who is convicted in absentia cannot appeal.”
“Perpetrators of or accomplices to offences committed outside the territory of the Republic may be prosecuted and tried by the French courts either where French law is applicable under the provisions of Book I of the Criminal Code or another statute, or where an international convention confers jurisdiction on the French courts to deal with the offence.”
“Under the international conventions referred to in the following Articles, anyone who is guilty of having committed any of the offences listed in these provisions outside the territory of the Republic and is present in France may be prosecuted and tried by the French courts. The provisions of the present Article shall apply to attempts to commit these offences, whenever an attempt is punishable.”
“For the implementation of the [United Nations] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted in New York on 10 December 1984, anyone guilty of committing torture within the meaning of Article 1 of the Convention may be prosecuted and tried in accordance with the provisions of Article 689-1.”
Article 1
“1. For the purposes of this Convention, the term ‘torture’ means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
2. This Article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application.”
Article 2
“1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.
2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.
3. An order from a superior officer or a public authority may not be invoked as a justification of torture.”
Article 4
“1. Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.
2. Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature.”
Article 5
“1. Each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences referred to in Article 4 in the following cases:
(a) when the offences are committed in any territory under its jurisdiction or on board a ship or aircraft registered in that State;
(b) when the alleged offender is a national of that State;
(c) when the victim is a national of that State if that State considers it appropriate.
2. Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over such offences in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him pursuant to Article 8 to any of the States mentioned in paragraph 1 of this Article.
3. This Convention does not exclude any criminal jurisdiction exercised in accordance with internal law.”
Article 6
“1. Upon being satisfied, after an examination of information available to it, that the circumstances so warrant, any State Party in whose territory a person alleged to have committed any offence referred to in Article 4 is present shall take him into custody or take other legal measures to ensure his presence. The custody and other legal measures shall be as provided in the law of that State but may be continued only for such time as is necessary to enable any criminal or extradition proceedings to be instituted.
2. Such State shall immediately make a preliminary inquiry into the facts.
3. Any person in custody pursuant to paragraph 1 of this Article shall be assisted in communicating immediately with the nearest appropriate representative of the State of which he is a national, or, if he is a stateless person, with the representative of the State where he usually resides.
4. When a State, pursuant to this Article, has taken a person into custody, it shall immediately notify the States referred to in Article 5, paragraph 1, of the fact that such person is in custody and of the circumstances which warrant his detention. The State which makes the preliminary inquiry contemplated in paragraph 2 of this Article shall promptly report its findings to the said States and shall indicate whether it intends to exercise jurisdiction.”
Article 7
“1. The State Party in the territory under whose jurisdiction a person alleged to have committed any offence referred to in Article 4 is found shall in the cases contemplated in Article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution.
2. These authorities shall take their decision in the same manner as in the case of any ordinary offence of a serious nature under the law of that State. In the cases referred to in Article 5, paragraph 2, the standards of evidence required for prosecution and conviction shall in no way be less stringent than those which apply in the cases referred to in Article 5, paragraph 1.
3. Any person regarding whom proceedings are brought in connection with any of the offences referred to in Article 4 shall be guaranteed fair treatment at all stages of the proceedings.”
Article 5
“No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”
Article 3 [common to the four Geneva Conventions]
“In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:
1. Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.
To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
...
(c) outrages upon personal dignity, in particular humiliating and degrading treatment;
...”
Article 3
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
“No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.”
The United Nations Human Rights Committee stated in 1992 in its General Comment No. 20 on Article 7 of the International Covenant that it had noted that some States had granted amnesty in respect of acts of torture, while stating that “amnesties are generally incompatible with the duty of States to investigate such acts; to guarantee freedom from such acts within their jurisdiction; and to ensure that they do not occur in the future. States may not deprive individuals of the right to an effective remedy, including compensation and such full rehabilitation as may be possible” (Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc. HRI/GEN/1/Rev.1 (1994), p. 30).
“1. Every person has the right to have his physical, mental, and moral integrity respected.
2. No one shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment. All persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person.”
Article 4
“...
2. Without prejudice to the generality of the foregoing, the following acts against the persons referred to in paragraph 1 are and shall remain prohibited at any time and in any place whatsoever:
(a) violence to the life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment;
...”
“Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man, particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment, shall be prohibited.”
“1. Having regard to paragraph 10 of the Preamble and Article 1, the Court shall determine that a case is inadmissible where:
(a) the case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution;
(b) the case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute;
(c) the person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under Article 20, paragraph 3;
(d) the case is not of sufficient gravity to justify further action by the Court.
2. In order to determine unwillingness in a particular case, the Court shall consider, having regard to the principles of due process recognised by international law, whether one or more of the following exist, as applicable:
(a) the proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court referred to in Article 5;
(b) there has been an unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice;
(c) the proceedings were not or are not being conducted independently or impartially, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice.
3. In order to determine inability in a particular case, the Court shall consider whether, due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings.”
In a judgment of 14 February 2002 (Case concerning the Arrest Warrant of 11 April 2000, Democratic Republic of the Congo v. Belgium), the International Court of Justice observed that the Democratic Republic of the Congo was no longer invoking the matter of Belgium’s claim to exercise universal jurisdiction and decided to confine its examination to the issue of respect for the immunities which the Congolese Minister for Foreign Affairs enjoyed in the exercise of his functions. The question of the Belgian judge’s powers and, accordingly, the exercise of universal jurisdiction was nonetheless addressed by certain judges in separate opinions annexed to the judgment (particularly, in the above-mentioned case, with regard to the universal jurisdiction by default thus exercised by Belgium).
In the case of Prosecutor v. Anto Furundzija (judgment of 10 December 1998 (IT-95-17/1-T)), the International Criminal Tribunal for the former Yugoslavia held as follows:
“153. Because of the importance of the values it protects, this principle [the principle of the prohibition against torture] has evolved into a peremptory norm or jus cogens, that is, a norm that enjoys a higher rank in the international hierarchy than treaty law and even ‘ordinary’ customary rules. The most conspicuous consequence of this higher rank is that the principle at issue cannot be derogated from by States through international treaties or local or special customs or even general customary rules not endowed with the same normative force.
154. Clearly, the jus cogens nature of the prohibition against torture articulates the notion that the prohibition has now become one of the most fundamental standards of the international community. Furthermore, this prohibition is designed to produce a deterrent effect, in that it signals to all members of the international community and the individuals over whom they wield authority that the prohibition of torture is an absolute value from which nobody must deviate.
155. ... It would be senseless to argue, on the one hand, that on account of the jus cogens value of the prohibition against torture, treaties or customary rules providing for torture would be null and void ab initio, and then be unmindful of a State say, taking national measures authorising or condoning torture or absolving its perpetrators ...
156. Furthermore, at the individual level, that is, that of criminal liability, it would seem that one of the consequences of the jus cogens character bestowed by the international community upon the prohibition of torture is that every State is entitled to investigate, prosecute and punish or extradite individuals accused of torture, who are present in a territory under its jurisdiction. ...”
Similar findings can be found in the judgments Prosecutor v. Mucić and Others (16 November 1998, IT-96-21-T, § 454) and Prosecutor v. Kunarac (22 February 2001, IT-96-23-T and IT-96-23/1, § 466).


ITEMID: 001-66723
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF PIENIAZEK v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 4. The applicant was born in 1957 and lives in Gdynia, Poland. She is a historian by profession and used to work as a curator in the Gdynia City Museum.
5. On 10 September 1996 the applicant brought a private prosecution on charges of libel against S.L. the director of the Gdynia City Museum to the Gdynia District Court (Sąd Rejonowy).
6. On 24 April 1997 the court held a conciliatory hearing. The applicant requested that S.L. retract in the press her defamatory statements. The defendant refused.
7. The trial began on 27 May 1997 but the applicant failed to appear. The court discontinued the proceedings on the ground that the applicant had been duly summoned. The court considered that the applicant had been notified about the service of the summons but failed to collect it from the post office. On 19 June 1997 the applicant appealed against this decision. On 2 September 1997 the Gdańsk Regional Court (Sąd Wojewódzki) quashed that decision and ordered that the District Court proceed with the case.
8. On 20 July 1998 the applicant filed a complaint with the District Court submitting that the length of the proceedings in her case had exceeded any reasonable time limit. On 31 July 1998 the president of the Criminal Division of the District Court informed her that the delay in the proceedings was caused by the presiding judge's illness.
9. On 25 October 1999 the president of the Criminal Division of the District Court ordered that the case be transferred to another judge.
10. The next hearing was held on 17 March 2000. On that date upon the court's order, the applicant specified the charges against S.L. Consequently, the court adjourned the hearing to consider discontinuation of the proceedings.
11. On 28 March 2000 the Gdynia District Court discontinued the proceedings, as the offence was time-barred. The court held that the applicant submitted her private prosecution after the time-limit of 3 months from the date on which she had become aware of the identity of the defendant.
12. Article 178 of the Criminal Code 1969 (which is no longer in force and was repealed and replaced by the so-called “New Criminal Code”), as applicable at the material time, reads as follows:
“§ 1. Anyone who imputes to another person, group of persons or institution such behaviour or characteristics, as may debase them in the public opinion or expose them to loss of the trust necessary for a certain position, occupation or type of activity, shall be liable to imprisonment not exceeding 2 years, a restriction of liberty or a fine.
§ 2. Anyone who raises or makes public untrue allegation about the behaviour or characteristics of another person, group of persons or institutions in order to debase them in the public opinion or expose them to loss of the trust necessary for a certain position, occupation or type of activity, shall be liable to imprisonment not exceeding 3 years.
...
§ 4. The prosecution takes place under a private bill of indictment.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1